Bryar Construction Co., and M & C Coal Co.

National Labor Relations Board - Board Decisions

Jan 24, 1979

240 N.L.R.B. 102 (N.L.R.B. 1979)

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bryar Construction Company and M & C Coal Com-
pany and Edwin B. Armitage, Jr. and United Mine
Workers of America. Case 6-CA-10673
January 24, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On August 11, 1978, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, the Respondents filed excep-
tions and a supporting brief, and the General Coun-
sel and the Charging Party filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondents, Ed-
win B. Armitage, Jr., Bryar Construction Company,
and M & C Coal Company, Apollo, Pennsylvania,
their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the words "previously enjoyed" after the
word "privileges" in paragraph 2(a) of the Adminis-
trative Law Judge's recommended Order.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor Rela-
tions Act, as amended, and has ordered us to post
240 NLRB No. 9
this notice. We intend to abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WILL NOI lay off or otherwise discriminate
against employees because of their activities on
behalf of, or their affiliation with, United Mine
Workers of America, or any other labor organi-
zation.
WE WIL.i NOI question in a threatening man-
ner employees about their union and related ac-
tivities, threaten employees in connection with
their union activities, spy upon the union activi-
ties of employees, or in any other manner inter-
fere with, restrain, or coerce our employees in
the exercise of rights guaranteed by the Act.
WE WILL offer Bruce Gray, Edward L. Steffy,
Albert Dobrosky, William L. Wilson, Raymond
L. Dunmire, Michael T. Piontka, and Willard L.
Beck reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiv-
alent jobs, without prejudice to their seniority or
other rights and privileges previously enjoyed,
and compensate them with interest for any loss
of pay and fringe benefits they may have suf-
fered because we laid them off.
BRYAR CONSTRUCTION COMPANY
M & C COAL COMPANY
EDWIN B ARMITAGE, JR.
DECISION
BERNARD RIES. Administrative Law Judge: This matter
was heard in Pittsburgh, Pennsylvania, on April 20, 1978.
At issue is whether Respondents' layoff of seven employees
on or about October 24, 1977, violated Section 8(a)(3) and
(I) of the Act, and whether, in June, August, and October,
1977, Respondents violated Section 8(a)(l) by threatening,
interrogating, and engaging in surveillance of employees.
Briefs have been received from all parties. Having con-
sidered the entire record, my impression of the witnesses as
they testified, and the briefs, I find and conclude as fol-
lows.
I. JURISDICTION
The nominal employer of the employees principally in-
volved here is Respondent M & C Coal Company (M & C).
It would appear that the business activities of M & C do
not meet the discretionary jurisdictional standards estab-
BRYAR CONSTRUCTION COMPANY 103
lished by the Board. It is the position of the General Coun-
sel, however, as expressed in the complaint, that jurisdic-
tion may be asserted over M & C because it and Respon-
dent Bryar Construction Company (Bryar), admittedly a
corporation over which the Board would exercise its discre-
tionary jurisdiction, "constitut[e] a single integrated enter-
prise and each corporation [is] the alter ego of the other."
For the reasons given below, I agree with this contention.
The central figure of this case is Edwin B. Armitage, Jr.'
Armitage is, inter alia, president and sole owner of Respon-
dent Bryar, which engages in the mining and sale of coal in
Pennsylvania. At the time of the alleged October 1977 un-
fair labor practices, the five employees on the payroll of
Bryar (William Rummel, Richard Smith, James Sells, Rob-
ert Dobrosky, and Chester Dobrosky) were stripping coal
on a site personally leased by Armitage in Maysville, Penn-
sylvania. The record shows that Bryar is a shadow corpora-
tion. Although Respondents introduced no supporting doc-
uments, Armitage testified that the modus operandi between
himself and Bryar is that he contracts with Bryar (which he
solely owns) to provide coal to him, from land owned or
leased by him, using equipment owned or leased by him
and re-leased to Bryar, and that he then uses the coal to
fulfill personal contracts between himself and various pur-
chasers.
During the period critical to this case, M & C was also
mining coal on the Maysville site, with some 15 employees,
pursuant to similar arrangements between it and Armitage.
The record indicates that M & C, as a business, was
formed by Armitage substantially before it was incorporat-
ed, but its prior technical ownership is not discussed in this
proceeding. The evidence shows, however, that M & C was
incorporated effective July 7, 1977, and its co-owners are
listed on the state corporation records as Edwin B. Armi-
tage III and Cynthia McDermott, the son and daughter of
Respondent Armitage. The senior Armitage testified that
he "would imagine" that it was his idea to create M & C
and to install his children as its owners-"You know, they
are a pair of pretty good kids and I wanted them to get a
business for themselves"--and he also said that he "put up
the money" for M & C.2
It is difficult to detect what "money" was required since,
as the record shows, M & C owns no assets other than its
books. Like Bryar, M & C works land owned or leased by
Armitage, digging and supplying coal (purportedly accord-
ing to an unproduced written agreement), using equipment
leased to it by Armitage. It is located, if that term can
On the day of the hearing, the Charging Party filed an amended charge
naming Armitage as an individual Respondent. and the General Counsel
sought and was granted, over the objection of the corporate Respondents,
various amendments to the compalint which had the effect of naming Armi-
tage himself as an entity constituting part of the "single integrated enter-
prise" previously alleged and further declaring that Armitage. as an individ-
ual proprietor, is an employer directly engaged in interstate commerce by
virtue of his own business activities. Counsel for the corporations entered an
appearance on behalf of Armitage. In their brief, Respondents concede that
"the amendment was within the proper bounds of the Judge's discretion in
conducting the hearing."
2 And also for Maysville Powder Company. an explosives firm legally
owned by McDermott. to which Armitage leases trucks and which does
work for Bryar and M & C, among others: and. further, for Squa, Valley
Coal Company. of which Armitage and his children are co-ovsners.
properly be employed here, in an office building at 311 N.
Second Street, Apollo, Pennsylvania, which is owned by
Armitage's brother and which houses Armitage himself,
Bryar, and several other enterprises owned or controlled by
Armitage.
At the common offices, the various Armitage firms, in-
cluding Bryar and M & C, share the same office equip-
ment, operated by four secretaries who perform clerical
work for all the companies. While Respondents seemed
intended to suggest that McDermott exercises operational
control over M & C, the record more readily lends itself to
the interpretation that she is in fact the office manager for
all the operations. She testified that she makes out the pay-
rolls for the companies and "supervises" the four clericals.
Indeed, when asked at the hearing who "has run" M & C
since its incorporation, McDermott answered "My fa-
ther." 3
The other evidence of record, some of it to be referred to
infra, clearly demonstrates the accuracy of that answer.
The testimony of the laid-off employees of M & C shows
that Armitage personally interviewed and hired each one.
Various of the employees further credibly testified that Ar-
mitage was the one who announced to them that they
would receive raises, that he was the one who usually hand-
ed their paychecks to them, and that he issued work in-
structions to them.4 I further credit their testimony, subject
to documentary refutation but given none, that Armitage
often signed for their pay on M & C paychecks. McDer-
mott testified that her father "determined the work sched-
ules for the M & C employees out at Maysville."
At the Maysville job, the work performed by the two
groups of employees was totally integrated. They worked
on the same cut of coal, they performed the same kind of
work, their functions were integrated, 5 they operated the
same equipment, they took their breaks at the same time-
and all of this subject to the close supervision of Armitage,
on land in the legal possession of Armitage, using equip-
ment owned by Armitage, through corporations owned
and controlled by Armitage and his family, in order to
produce coal destined to satisfy supply contracts person-
ally executed by Armitage. 6
In determining whether two or more businesses are suffi-
ciently integrated so that they may be fairly treated, for
jurisdictional and other purposes, as a single enterprise, the
'Willard Beck, who worked for M & C from August through October.
testified that he did not even know what McDermott looked like.
4 Armitage frequently visited the Maysville mine, dropping in by helicop-
ter. Chester Dobrosky, who was on Bryar's payroll and was evidently con-
sidered the "boss" of the job, testified for the General Counsel that Armi-
tage would tell him "what he wants done and Chester] issuels] the orders,"
and that he would give such instructions to both Bryar and M & C employ-
ees "[ijf [Armitage] told me to," which Armitage "sometimes" did. This does
not seem inconsistent with the testimony of the employees that Armitage
would directly issue them instructions. In fact, asked whether he would stop
at Maysville and give instructions to all the men. Armitage replied. "No, not
too often." But insofar as instructions to the M & C employees were fun-
neled through a Bryar employee, it is also supportive of the General Coun-
sel's single-enterprise theory.
Thus, only Bryar employees operated the dragline at the cut, a function
apparently necessary to the work of the M & C employees.
A striking example of the integration of the companies is the fact that in
June 1977. Armitage handed Albert Dobrosky a life insurance policy cover-
ing Dobrosk,y ostensibly an M & C employee, under a group policy issued
to Bryar.
BRYAR CONSTRUCTION COMPANY
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board looks to four principal factors: (I) common man-
agement; (2) centralized control of labor relations; (3)
interrelation of operations; and (4) common ownership or
financial control. Radio and Television Broadcast Techni-
cians Local Union 1264 v. Broadcast Service of Mobile, Inc.,
380 U.S. 255, 256 (1965); Sakrete of Northern California,
Inc. v. N.L.R.B., 332 F.2d 902, 905, fn. 4 (9th Cir. 1964).
"The Board has determined that no single criterion is con-
trolling, although it considers the first three, which evi-
dence operational integration, more critical than the
fourth, common ownership." N.L.R.B. v. Triumph Curing
Center and M. F. Lee d/b/a Lee's Sewing Company, Inc.,
571 F.2d 462, 468 (9th Cir. 1978), enfg. 222 NLRB 627
(1976).
There is no question that the first three factors have been
established here. The record shows beyond dispute that
Bryar and M & C are effectively managed and operated by
Armitage; indeed, they are mere corporate shells, created
by Armitage for his own purposes, through which he pro-
duces coal in order to meet his personal obligations to sup-
ply coal to utilities engaged in interstate commerce.7 The
two corporations could scarcely be more interrelated, both
functionally and operationally. That the control of their
labor relations policies is centralized in Armitage is beyond
doubt, as discussed above and as further developed below.
While it is probably unusual to conclude that several com-
panies constitute a single integrated enterprise in the ab-
sence of common ownership, technically the situation here,
it is not unprecedented. Triumph Curing Center, supra. In
addition, the Board often treats ownership by other family
members as personal ownership for the present purposes.
MP Building Corporation, et al. d/b/a Kent Construction
Company, 165 NLRB 829, 831 (1967), enfd. 411 F.2d 567
(5th Cir. 1969). Furthermore, the fact that Armitage may
have vested legal ownership of M & C in the "kids," after
he created and "put money" into that corporation, seems
of scant significance in light of the plainly dominant role
he played in the affairs of the Armitage family.8
I have not gone into detail here about the breadth of
Armitage's enterprise, but the record clearly shows a tangle
of legal fictions only thinly clothing the varied activities
and complicated economic life of a very busy individual.
The evidence makes clear that Armitage's mining opera-
tions, which effectively include Bryar and M & C, are of a
piece, and that a labor dispute occurring in any segment
reasonably threatens to disrupt the flow of interstate com-
merce. Even if the concerns were not to be judged a single
enterprise, Bryar would be, through the agency of Armi-
7 The record in fact shows that Armitage would sometimes send individ-
uals on the payroll of M & C to work on other of his personal enterprises for
short periods; they continued to be paid by M & C.
The record shows that Bryar recognizes the Charging Party as the bar-
gaining representative of its employees. Charging Party's brief asserts that
Armitage formed M & C "motivated by a deep filial bond for his children
and the desire to evade his collective bargaining agreement with the Union."
While the pleadings do not directly raise that issue, the assertion is not off
the mark; Albert Dobrosky credibly testified that in January 1977, Armi-
tage told him that he "was starting a new coal company to be M & C Coal
Company and it would be non-union."
The extent to which the interests of Armitage and his children are melded
is indicated by his testimony about a corporation called Avonmore Fast
Freight: "I don't think I own 100 percent of that. I think my son owns that."
tage, at the least a joint employer of the M & C employees,
and jurisdiction would attach in that manner. Quality
Courts Motels, Inc., d/b/a Quality Motels and Quality Mo-
tel-Midtown and Quality Motels of Iowa, Inc., etc., 194
NLRB 1035, 1037 (1972).
Assertion of jurisdiction over Armitage as an individual
is also appropriate. He personally contracts with West
Penn Power Company, which is in interstate commerce, to
supply that utility with presumably large amounts of coal.
In 1977, he supplied 2000-2500 tons of coal to Mid-Edison
Company in New York State, and has a similar contract in
1978 with New York State Electric and Gas Company. He
testified that his contracts to supply coal to locations out-
side of Pennsylvania amount to "forty or fifty" thousand
dollars. Armitage is, in effect, the employer of the Bryar
and M & C employees; he was the moving force behind the
unfair labor practices to be found hereafter; and, in view of
his propensity to deal through asset-bare corporations, it is
desirable that the order to be issued attach to a substantial
respondent, one who is both responsible for the violations
found and capable of remedying them. E.g., N.L.R.B. v.
Albert Amato and Wire & Sheet Metal Specialty Co., 199
F.2d 800, 803 (7th Cir. 1952); Cookeville Shirt Company and
P. M. French, 79 NLRB 667, 671 (1948).
tI. THE COMPLAINT ALLEGATIONS
The Maysville strip-mining site is a large tract of land
which Bryar employees had been working for apparently a
period of several years and which M & C, after its first
incarnation, probably in January 1977, began working
also. As of October 1977, there were five employees on the
Bryar payroll mining there; about fifteen or so employees
of M & C were also employed on the site, although evi-
dently their employment was occasionally broken by short
dispatches to other locations operated by Armitage.
The UMW-represented Bryar employees were sensitive
about the fact that they were employed side by side on a
cut of coal with nonunion employees who, they appar-
ently believed, were receiving substandard wages. Word
was circulated by the Union men that they would like to
have the unorganized M & C employees attend a Union
meeting at I p.m. on Monday, October 24, to review the
situation. That day was Veterans Day, a holiday (at least
for the union men, see infra).
Armitage testified that he travelled to Virginia on Thurs-
day, October 20, and that on either the following Saturday
or Sunday he received a call there from his daughter, who
told him that "there was going to be a union meeting Mon-
day, an organization meeting and what should she do and
I said don't get excited, take it easy, I'll be home." When
Armitage returned on Sunday, he called "some of these
men to see what was going on." 0
9 The source of this information is not disclosed in the record. It may
have come to McDermott from her uncle, Charles Armitage, Sr.. who, M &
C employee Michael Piontka credibly estified, Piontka consulted on Fri-
day, October 21. Piontka said he told Charles, an employee on the M & C
payroll, that he was uncertain about going to the union meeting "because I
knew Ed was against the Union, I didn't want to lose my job." Charles
advised him that he would "be better off, I'd be smart if I didn't go to the
meeting."
10 Demonstrating the control exercised by Armitage over M & C person-
BRYAR CONSTRUCTION COMPANY 105
While Armitage did not testimonially expand on the na-
ture of the calls, the M & C employee witnesses did. Mi-
chael Piontka, an alleged discriminatee, testified that when
Armitage called on Sunday night, he asked if Piontka was
coming to work on Monday, and Piontka responded that
he was going to a meeting. Armitage said that "there is
work tomorrow, he said you know how I feel about the
Union." After Piontka revealed his uncertainty about what
to do, Armitage said, "Well, you know how I feel about the
Union, if you go to the meeting he said you're going to
have to find yourself another job." Piontka finally agreed
to work, but after a reassuring conversation with fellow
employee Albert Dobrosky, he changed his mind and went
to the meeting on Monday.
M & C employee William Wilson testified that when
Armitage called him on Sunday:
He asked me if I was coming in to work tomorrow
and I said I thought it was a holiday. He said he want-
ed me to work anyhow, I said okay, then he asked me
if I was going to attend the meeting tomorrow and I
said yes and he said I was making a mistake and I
asked him why and he said for me to come up to the
job in the morning and we'd talk about it.
Finally, Armitage contacted M & C employee Willard
Beck that Sunday evening, asked and was told about
Beck's intention to attend the meeting, and requested Beck
to stop at the jobsite first, saying, "It would be better for
you if you did stop and talk to me first before you go."
Beck, however, went directly to the meeting."
On Monday, seven employees of M & C attended the
meeting, together with some Bryar employees. As they ar-
rived and waited outside the union hall in the town of
Avonmore, about a mile from Maysville, some of the em-
ployees saw McDermott sitting in her automobile about
seventy-five to one hundred yards away, in front of the
local bank. Albert Dobrosky testified that he watched Mc-
Dermott in the car "[p]retty close the whole time" from its
arrival about 12:40 until he went into the meeting "[a]bout
ten to one, five to one," and he did not see her get out. He
mentioned this to other employees.' 2 At the meeting, union
nel matters, McDermott testified that her father told her he was going to
call the employees "and tell them that there was work for Monday, to see
what was going on because they were scheduled to work Monday."
I Armitage only generally denied making threats to the employees. He
was not a witness in whom I would impose trust. The General Counsel's
witnesses were all impressive in their appearances, despite some minor con-
flicts between them, and I credit them over Armitage. McDermott seemed a
more reliable person that her father, hut less so than the witnesses called by
the General Counsel.
12 This conduct is alleged in the complaint as unlawful surveillance of the
union activities of the employees, by both McDermott and her father, who
was parked nearby waiting for her. Their testimony was that the) had made
an appointment to meet for lunch in Avonmore., that he waited in his car
near a bridge for her to arrive, and then she came across the bridge, he
followed her and, in passing the field in which the employees were standing.
waved to them, and that she then did some banking and thereafter joined
him at a restaurant. While McDermott denied that she sat in her car observ-
ing the employees. I am inclined to prefer Albert Dobrosky's testimony on
this point. The circumstances suggest that the presence of Armitage and
daughter near the location of the union meeting (the news of which had
"excited" her) at a time probably known to them to be just prior to the
commencement of the meeting. was not coincidental, and the credited facts
that McDermott sat in her car for a penod of time, and that her father sat
representatives sought to organize the M & C employees,
and a second meeting was scheduled for the following Sun-
day.
On the evening of the meeting and the next evening,
Armitage made some telephone calls to the employees
which are of substantial materiality here. Piontka credibly
testified that Armitage called on the night of the meeting
and asked if he had gone to the meeting, who was in atten-
dance, and what occurred. He further told Piontka he
would call again the next evening. When Piontka asked if
he was fired, Armitage told him to "hang loose," but not to
come to work the following day. The next evening, Armi-
tage called again and said he wanted Piontka to "sign up"
for unemployment compensation. The conversation con-
tinued:
He said there won't be any work for you until this
union mess is straightened out. I said okay. He said he
was sorry that this had to happen, he said I would
have made him a good operator, but he said if you go
to the meeting on Sunday, this coming Sunday, he
said I'll have to look for another job.
Piontka attended the Sunday meeting; he was never re-
called to work.
Similarly, M & C employee Edward Steffy said that on
the night of the first meeting, Armitage called and said
there would be no work for him the next day. Steffy asked
if he was laid off; Armitage answered, "No, I don't think
so, until I find out what went on at that union meeting
today." Willard Beck also received a call from Armitage on
Monday evening, in which Armitage asked if "I went to
that meeting that day" and, receiving an affirmative reply,
told Beck that "he didn't know what would get worked out
over this matter, that we wouldn't be running the rock
trucks tomorrow. He said he'd call me when he needed
me." The other four employees were also told that week, by
either Armitage or his daughter, that there was no further
work for them.'
Asked at the hearing about these conversations, Armi-
tage admitted that he called Steffy on the evening of the
meeting and "probably said there's no work for you," but
was "not too sure I said anything about the meeting." His
pretrial affidavit, given on November 16, contains the fol-
lowing statement, which he said at the hearing he "appar-
ently" made to the Board agent:
I called Ed Steffy Monday, October 27th, 1977, at
1:00 a.m. sic] and told him there would be no work
until I found out what happened at the union meeting.
Among the wealth of evidence mined by the General
Counsel bearing on the motivation for the layoffs was the
undenied testimony of Robert Dobrosky, a Bryar employ-
ee (and cousin of Albert and son of Chester), that when he
returned from a 2-week vacation on the last Friday in Oc-
tober, he asked Armitage "how he was going to go about
stripping, what was going on because we was running short
in his car near a bridge over which the employees might arrive, instead of
going directly to the restaurant where they were to have lunch, which he
testified had been agreed upon. indicates a deliberate concerted effort to sp?
on the activities of the employees. I find the violation alleged.
I Armitage agreed that he "told Cinds to tell the M & C men to sign up
for unemployment."
BRYAR CONSTRUCTION OMPANY
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of men." In answering, Armitage said, "[T]hat fucking Al-
bert, I don't understand why he went with those other
guys. If he would have come to me and told me what was
going on, he said he would have given hii n a thousand
dollars and told him to take a vacation and take his wife
and come back." 14
The layoff of the employees of dabbling in unionization
had been long forecast. Piontka convincingly testified that
when Armitage hired him in June, and Piontka asked if it
was a union job, Armitage said that it was not and that
"anybody that spoke about the union would go down the
road." Albert Dobrosky testified that Armitage had told
him on several occasions that "there wouldn't be any work
for guys that want to join the union." When Steffy was
hired in March 1977, Armitage told him that "this was
nonunion work and that Mr. Armitage wanted no part of
me joining any union or becoming a union member." Wil-
lard Beck was told by Armitage, upon being employed in
August, that "he didn't want to hear nothing about the
union. He don't want to hear no union talk from us. He
says that if he did, he said he'd sell all of his equipment and
go back to selling meat." 15 Armitage generally denied
threatening employees, but said that in interviewing
i4 Albert Dobrosky testified, over objection by Respondents which I, al-
though "uncertain," overruled. that in early November, he visited the state
unemployment office and, while there, a state employee, Mrs. London. had
a telephone conversation with McDermott. In the course of that discussion,
London reported McDermott as saying "there was work for me if I wanted
to come to work but if I wanted to stick with the union meeting that there
was no work with their company." McDermott denied the damning testi-
mony, but admitted the conversation, said that she knew Albert was there at
the time, and further testified that London stopped to repeat comments lt
Albert during the course of the call, and that McDermott could hear "ev-
erything she said." While conceding that Albert's testimony was "technical-
ly hearsay," the General Counsel represented that Mrs. ILndon was out of
the state at the time of the hearing and that he had issued a subpoena to the
state office for records of the conversation and had been told that it would
not respond (a letter from an Assistant Attorney General of Pennsylvania
attached to the General Counsel's brief asserts that state law prohibits dis-
closure of records unless M & C were to waive its rights).
The General Counsel urged at the hearing, and again in its brief, that the
testimony is admissible under Rule 803(24) of the Federal Rules of I(vi-
dence, which provides a catchall hearsay exception for statements "having
equivalent circumstantial guarantees of trustworthiness" as the expressed
exceptions, if. inter alia, "the statement is more probative on the point for
which it is offered than any other evidence which the proponent can procure
through reasonable efforts" and "the general purposes of these rules and the
interests of justice will best he served by admission of the statement into
evidence."
While the circumstances of the conversation seem to be peculiarly trust-
worthy, the statement is, in my view, cumulative, and and thus not "m'iore
probative" on the issue of motiation than the other evidence. I note further
the evident lack of compliance with the qualification of the rule that "a
statement may not be admitted under this exception unless the proponent of
it makes known to the adverse party sufficiently in advance of the trial or
hearing to provide the adverse party with a fair o(pportunity to meet it, his
intention to offer the statement and the particulars of it, including the name
and address of the declarant." There is no record showing why such notifi-
cation would not have been "practicable" under Sec. IO(b) of the Act, which
requires Board proceedings to be conducted "so far as practicable" in ac-
cordance with the Federal Rules of Evidence.
I note the recent decision in Alvin J Bart and ('o. Inc. 236 NI.RB 242
(1978). which suggests that the Board might think it appropriate to rely
upon this testimony. Nonetheless, particularly since it is simply another
stone for a wall already built. I see no reason to do so.
5 Beck's brother Joseph, who was present at the interview, confirmed
these statements at the hearing, Armitage acknowledged that he had begun
his career in the meat business.
"Ielvery one of" the employees who had testified. he had
told them that "Mike and Cindy, M & C was going into
business for themselves and they were forming a nonunion
company." I credit the more extensive and more likely tes-
timony of the employees. 6 Thus, Armitage had cautioned
that the livelihood of the employees depended upon their
maintaining a proper distance from the Union; when they
ignored that warning, they suffered the predicted conse-
quences.
It is a curious thing that there was no direct testimony by
either Armitage or his daughter as to the reason for the
layoffs; there are slight allusions here and there that eco-
nomic necessity or judgment provoked the action, but no
explicit effort at the hearing to explain the timing and cir-
cumstances of the decision to lay off. Respondents' brief,
however, states that "Respondents contend that the men
were let go due to valid economic reasons, i.e., lack of
work." 17
The evidence, to the contrary, is that there was plenty of
work left to be done at Maysville. Respondents' records
disclose that the seven laid-off employees worked substan-
tial amounts of overtime immediately prior to October 24,
as did other M & C employees and Bryar employees. There
is testimony that a big push was on in anticipation of the
nationwide coal strike of December 6. Albert Dobrosky
testified that, as of October 24, there were 10 acres on the
hillside of the site which had not been stripped, and it takes
"a couple of months maybe" to clear an acre.
Employee William Wilson testified that it would have
taken "[a] month or two" for the whole crew to finish "that
cut of coal" on which it was working at the time of the
layoff, but he also described a conversation with Armitage
which occurred I or 2 months before October 24 and
which seems consistent with the projection made by Albert
Dobrosky. According to Wilson, whose testimony was not
challenged at the hearing, Armitage told him that he in-
tended to strip "approximately ten acres" of coal on the
side of the hill near the cut being worked, a job which
Wilson estimated would have required "at least two years"
for both groups of employees working three shifts. Bryar
employee Robert Dobrosky testified that after the coal
strike ended, he and two other Bryar employees, and
Charles Armitage, Sr. and Jr., and Pear)' Forester, the lat-
ter three being M & C employees, in fact began stripping
the hillside, a project which Dobrosky estimated would re-
quire "maybe five years" with the complement of six em-
ployees.
Prior to the layoffs, as earlier noted, M & C employed a
number of other men at the Maysville site besides the sev-
1 Ihe complaint alleges that the statements to Piontka in June and to
Beck in August violated Sec. 8a)( I). I so find. I make no findings as to the
statement to Steffy, which preceded the Sec. 0I(b) period, and the several
remarks to Dobrosky, which are not pleaded nor sufficiently fixed in time.
'Thus putting to rest the occasional hint in the record that the men may
have offended by not working on Veterans Day. as purportedly scheduled.
The contention on brief is, however. squarely contradictory of the affirma-
tive defense made by Respondent M & (' in its answer to the complaint'lhat
the seven employees "were instructed to g to work on October 24. 1977,
and none of said employees appeared for work on that day or any day
thereafter." and that the employees "were not discharged until October 27.
1977. until they failed to appear for work on three consecutive days. al-
though requested to appear." The latter allegation is directly disputed b the
testimony of Armitage and his daughter.
BRYAR CONSTRUCTION COMPANY 107
en named discriminatees. Although it does not show where
they worked, the M & C payroll lists, as having been em-
ployed in 1977, Charles Armitage, Sr., Charles Armitage,
Jr., Ralph Crawford, Mark DeStephano, Peary Forester,
Harry Hankinson, Joseph Lucas, and Joseph Lux.'B Piont-
ka testified only that Charles, Sr. and Jr., Hankinson, and
Lux had worked with him at Maysville before the layoffs.
Albert Dobrosky, however, testified that Forester, Craw-
ford, and Lucas had also worked at the Maysville cut.
Steffy corroborated Albert as to Forester and Lucas, and
was not asked about Crawford. The combined testimony
of Wilson, Beck, and Chester Dobrosky also supports the
more inclusive testimony given by Albert Dobrosky.
The significant fact here is that only the seven M & C
employees who attended the union meeting were terminat-
ed; the other seven or eight M & C employees who worked
at Maysville, but did not participate in the concerted activ-
ities, continued to work for M & C after the October 24
layoffs. The 1977 payroll records show that all eight em-
ployees named above continued to work steadily after Oc-
tober 24, with varying amounts of overtime, into Decem-
ber. Those records do not indicate the locations at which
the employees were then working, and for this information,
resort must be had to the again somewhat uncertain testi-
mony of the General Counsel's witnesses. Albert Dobrosky
testified that he visited the Maysville site three or four
times in November and saw working there, aside from the
Bryar employees, Charles Armitage, Sr., his son, Ralph
Crawford, and Peary Forester. Albert also went to the
Shay site, about 10-15 miles from Maysville, on one occa-
sion in November, and there witnessed Forester, Lucas,
Hankinson, and Lux engaged in stripping coal. Wilson,
who visited the Maysville site approximately ten times after
the layoff, recalled seeing only the two Charles Armitages
and Forester, and some "guys running the drag line." But
he also went to the Shay operation on five occasions and
there saw Hankinson, Lucas, Lux, and Forester using some
of the same equipment that had been in use at Maysville
prior to the layoffs. Robert Dobrosky testified that the M
& C employees who continued to work at Maysville when
he returned from vacation at the end of October were the
two Armitages and Forester.
It would appear that M & C began the Shay job around
the time of the layoffs. Cynthia McDermott at first testified
that the Shay operation "had just started" in October, but
then became "not sure when Shay started, because a cou-
ple of men were hired to work there and then I couldn't get
the permit transferred and eventually they did go over
there." 9 I credit the testimony of the employee witnesses
that they observed M & C employees working at Shay in
November. There might be theoretical room in this record
for an argument that M & C had intended, upon the com-
mencement of the Shay job, to reduce operations at Mays-
ville and simultaneously transfer the diminished comple-
18 Donald Ersley began to work for M & C on October 25, the first day of
the layoffs. He probably worked at the Shay site, which M & C may have
begun mining in October (the testimony on this point is not clear, see infra).
since, according to Armitage, he leases that site from Ersli
1 Armitage said that the permits "had to be transferred from my
brother's name to my name. The lease is in my name. the permits are in M
& C's name.'
ment to Shay. In point of fact, however, there is not a sliver
of testimony to this effect. Respondents nowhere proffered
any defense that such a plan had been formulated prior to
the sudden appearance of the union problem. The record is
totally devoid of explanation about the decision to de-
crease the M & C work at Maysville and to initiate expand-
ed operations at Shay.
The true explanation as confirmed by the timing of the
actions, the credited testimony of the employees, and the
meaningful admission made by Armitage at the hearing
may be found summarized in testimony given by Albert
Dobrosky and Bruce Gray. The former said that when Mc-
Dermott called him on October 27 to tell him to sign up for
unemployment insurance, she said "the)' were slowing
down, that's all." The latter testified that when he spoke to
Armitage on the night of the union meeting, Armitage said,
"We're going to slow things down, he didn't need me."
Thus, while the record as a whole does seem to indicate
a diminution in the total work being done by Mi & C after
October 24,20 it was clearly the product of a deliberate de-
cision "to slow things down" in view of the organizational
campaign. The previously declared intention to mine the
hillside at Maysville was abandoned for the time being; 21
the emphasis of M & C's operation was suddenly shifted to
the Shay job; and the only M & C employees who survived
were those who had not been in attendance at the Union
meeting, and who were, significantly, and almost without
exception, junior in service to the employees who were laid
off.2
It is, accordingly, conclusively shown on this record that
the seven employees named in the complaint were effec-
tively laid off on October 24, 1977, for no reason other
than their union activities, and that Respondents thereby
violated Section 8(a)(3) and () of the Act. On the basis of
the findings previously made, I further conclude that by
threatening Piontka with discharge if he spoke about a
union, in June 1977; by threatening Beck with closing of
the business in the event of talk about a union, in August
1977; by coercively interrogating employees on October 23
and 24, 1977; by telling Piontka and Wilson on October 23
that they would be imperilling their jobs by going to the
Union meeting; by indicating to Steffy and Piontka on
October 24 and 25 that there would be no work while the
union effort was pending; and by surveilling the union ac-
tivities of employees on October 24, 1977, Respondents
violated Section 8(aX I) of the Act.
CONCLUSIONS OF LAW
I. Respondents Bryar Construction Company, M & C
Coal Company, and Edwin B. Armitage, Jr., constitute al-
ter egos and a single integrated business enterprise over
20 There was little additional hinng by M & C thereafter; two new em-
pliyees were taken on in December.
As noted, once the coal strike ended, according to Robert Dobrosky.
both Bryar and M & C employees began stripping the hill
22 Albert Dobrosky was first employed in March 1976; Steffy in March
1977. Gray in Apnl 1977; Wilson in May 1977: Piontka in June 1977: Beck
in August 1977; and Dunmire in October 1977 Of the employees who con-
tinued to work for M & C after October. the earliest hired was Armitage Jr.,
in May 1977. De Stefano had begun in June, and Armitage Sr., Crawford,
Forester, Hankinson. Lucas, and lux in late August or early September
BRYAR CONSTRUCTION COMPANY
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the Board has, and appropriately should exercise,
jurisdiction, and are therefore each employers engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. United Mine Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By laying off Bruce Gray, Edward L. Steffy, Albert
Dobrosky, William M. Wilson, Raymond L. Dunmire, Mi-
chael T. Piontka, and Willard L. Beck, on October 24,
1977, and failing and refusing to recall them to employ-
ment thereafter, Respondents violated Section 8(aX3) and
(1) of the Act.
4. By threatening employees with discharge and closure
of business in June and August 1977; by coercively interro-
gating and threatening employees in October 1977; and by
surveilling the union activities of employees in October
1977, Respondents violated Section 8(a)(1) of the Act.
5. The aforesaid acts and conduct constitute unfair la-
bor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents violated the Act, remed-
ial relief is clearly in order.
The customary remedy for the unlawful layoff of the
seven employees on October 24 would be a requirement
that they be made whole by an offer of reinstatement and
payment of backpay. The precise nature of an appropriate
reinstatement offer and the amount of backpay due in the
present circumstances is not as clear as in other cases.
While the evidence supports a finding, made above, that
the complement at the Maysville site would not have been
so abruptly reduced were it not for the advent of the
Union, I cannot say with complete confidence that the
work would have proceeded in full force to this day at
Maysville had the union problem not arisen. The record
shows a propensity on the part of Armitage to shuffle em-
ployees around from job to job, and it may indeed have
been in the cards for a gradual transfer of work to Shay or
elsewhere.
Respondents have failed, however, to adduce any evi-
dence that there was ever an intention, before the eruption
of union activity, to decelerate the pace of work at Mays-
ville, and the evidence on that issue points in the contrary
direction. On the other hand, the record also shows a
movement of M & C employees to the Shay site in Novem-
ber, and hiring of two employees (Sumney and Tressler) by
M & C in December 1977, probably to work at Shay,23 but,
at the same time, no employment of Hankinson and Lucas
by M & C for almost the first 2 months of 1978, after which
they resumed erratic employment, and a similar decrease
of employment for some of the Bryar employees in the
beginning of 1978. The lengthy coal strike which began on
December 6 may have been a consideration here.
A factor which also belongs in the mix is the estab-
lishment by Armitage of a company called Squaw Valley
Coal Company, for which he "put up the money" and of
23 The emplovment of these new workers, in disregard of those laid off in
October, further evidences an illicit motive.
which he, his son, and his daughter are the owners. While
Armitage testified that the company was started in "Janu-
ary, February" 1978, its payroll records show that it was
employing some equipment operators before the end of
1977. The failure of Armitage to offer employment on this
job to any of the laid-off employees not only provides ad-
ditional evidence of an intent to discriminate against them,
but also suggests that had it not been for their union activi-
ties, at least some would have been employed even if there
had been a legitimate plan to slow the work at Maysville.
Armitage himself testified that although he did not general-
ly transfer employees from one corporation payroll to that
of another, "[a]s they were formed maybe [we] moved them
out of one to another. .... We just didn't want them to
lose work. We wanted everybody to get a week in so we
moved them around, but I think once they were on a pay-
roll, they stayed there." 24
In N.L.R.B. v. Miami Coca-Cola Bottling Company, 360
F.2d 569, 572-573 (5th Cir. 1966), the court stated:
But the Board has, as a matter of policy-one that
seems reasonable-consistently taken the view that
when an employer's unlawful discrimination makes it
impossible to determine whether a discharged employ-
ee would have earned backpay in the absence of dis-
crimination, the uncertainty should be resolved
against the employer.
Applying that approach here, and taking into account the
evidence indicating the likelihood that the work would
have continued at full speed at Maysville in the absence of
union activities,25 1 shall recommend that Respondents be
required to offer full reinstatement, without prejudice to
their seniority and other rights and privileges, to the seven
discriminatees to their former jobs, or, if such jobs are not
available, to substantially similar jobs, (a) at the Maysville
site or (b) at any other location controlled by Respon-
dents, if Respondents wish to exercise such an option and
the discriminatees, individually, agree to accept such an
offer. In further application of the principle quoted above,
and because the evidence indicates the probability of con-
tinued steady employment for the seven employees had
they not engaged in protected activity, I shall recommend
that Respondents be required to make the seven discrimi-
natees whole for loss of pay and other benefits by paying to
them amounts equal to what they would have earned but
for their layoff for the period between October 24, 1977,
and the date of valid offers of reinstatement, as set out
above.2 6 Backpay, with interest, shall be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). 27
I shall also recommend that Respondents be required to
post appropriate notices.
Upon the foregoing findings and conclusions and the
24 This statement provides further evidence. of course, of the total integra-
tion of operations in the related enterprises.
25 Here should be recalled the testimony that Armitage said he intended
to strip the hillside and the testimony that such work is actually being done
at resent with a depressed complement.
The effect of the nationwide coal stnke on the backpay order is a
matter to be considered in the compliance proceeding.
27 See, generally, Isti Plumbing & teating Co., 138 NLRB 716 (1962).
---
BRYAR CONSTRUCTION COMPANY 109
entire record, and pursuant to Section 10(c) of the Act, I
issue the following recommended:
ORDER 28
The Respondents, Bryar Construction Company, M & C
Coal Company, and Edwin B. Armitage, Jr., Apollo, Penn-
sylvania, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Laying off or otherwise discriminating against em-
ployees because of their activities on behalf of, or their
affiliation with, United Mine Workers of America, or any
other labor organization.
(b) Threatening employees in connection with union ac-
tivities, coercively interrogating employees about union ac-
tivities, and surveilling the union activities of employees.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights under Section 7
of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
28 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National l.abor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes.
(a) Offer to Bruce Gray, Edward L. Steffy, Albert Dob-
rosky, William L. Wilson, Raymond L. Dunmire, Michael
T. Piontka, and Willard L. Beck, full reinstatement to their
former jobs of, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and made them whole, in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payroll records, timecards, per-
sonnel records and reports, and all other records necessary,
or appropriate, to analyze the amount of backpay due.
(c) Post at their place of business in Apollo, Pennsylva-
nia, copies of the attached notice marked "Appendix." 9
Copies of the notice, on forms provided by the Regional
Director for Region 6, after being duly signed by Respon-
dents' authorized representatives, shall be posted by them
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondents to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
Respondents have taken to comply herewith.
29 In the event that this Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."