Buckeye Coal Co.

National Labor Relations Board - Board Decisions

Mar 14, 1977

228 N.L.R.B. 659 (N.L.R.B. 1977)

BUCKEYE COAL CO.
Buckeye Coal Company i and United Steelworkers of
America, Local Union 14685 , AFL-CIO-CLC.
Case 6-CA-9075
March 14, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On November 9, 1976, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Nemacolin
Mines Corporation, successor to Buckeye Coal
Company, Nemacolin, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
i On April I, 1976, Nemacolin Mines Corporation took over the
operating functions previously performed by Buckeye Coal Company
2 For the reasons given in his dissent in Curtis Industries, Division of
Curtis No!! Corporation, 218 NLRB 1447 (1975), Member Fanning would
not find the discriminatee to be a "managerial" employee under the Act
even if he were a "management trainee."
DECISION
STATEMENT OF CASE
RALPH WINKLER, Administrative Law Judge: Upon a
charge filed on March 10, 1976, a complaint issued by the
General Counsel on May 21, 1976, and an answer filed by
Respondent, a hearing was held in Pittsburgh, Pennsylva-
nia, on July 26, 1976.
Upon the entire record in the case, including my
observation of the demeanor of witnesses and upon
consideration of briefs, I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
659
Respondent Buckeye Coal Company, a wholly owned
but independently operated subsidiary of the Youngstown
Sheet and Tube Company, is a Pennsylvania corporation
engaged in mining operations at Nemacolin, Pennsylvania.
On April 1, 1976, Nemacolin Mines Corporation, which
also is a wholly owned subsidiary of Youngstown Sheet
and Tube, took over the operating functions of the
Nemacolin mines theretofore performed by Buckeye Coal
Company. The parties agree, and I find, that Buckeye Coal
Company and Nemacolin Mines Corporation are employ-
ers within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, Local Union 14685,
AFL-CIO-CLC, herein called the Union, is a labor
organization within Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Ralph Thompson was employed from 1973 until March
1976 as an accountant in the accounting department at
Respondent's mining facility at Nemacolin, Pennsylvania.
Thompson was discharged on March 5, 1976, and the
principal issues are whether his termination was for union
reasons and, if so, whether Thompson was either a
statutory supervisor or a managerial employee and there-
fore outside the coverage of the Act on either basis.
Following an election, on September 12, 1975, the Union
was certified to represent the office clerical and technical
employees in the accounting department at Respondent's
Nemacolin, Pennsylvania, facility. The eligibility list
prepared and submitted by Respondent in connection with
that election did not include the name of Ralph Thompson
and he did not vote in that election. A 3-year collective-
bargaining agreement was subsequently negotiated and
executed by Respondent and the Steelworkers on February
9, 1976.1
Robert Lunsford, the "mine accountant," was in charge
of the Nemacolin accounting department and was Thomp-
son's supervisor until December 1, 1975. On that date
Lunsford advanced to the position of mine accountant
administrator, a promotion offered to him in September,
and Kermit Anderson succeeded Lunsford as the mine
accountant. In September 1975, George Henning (control-
ler of the Nemacolin operation) asked Thompson if he was
interested in the mine accountant position, and Thompson
said he was not and he declined the promotion. As mine
accountant, Anderson became the new supervisor of the six
accounting department employees (including Thompson).
Henning is the "mine accountant 's" immediate superior.
On or about March 1, 1976, several accounting depart-
ment employees suggested to Thomspon that he join the
Union as he was performing substantially the same office
functions as they and for which the Union had been
i The underground employees at the Nemacolin mine have been
represented by United Mine Workers of America'for many years.
228 NLRB No. 90
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certified . Thompson signed a union authorization card the
next day, and several of the employees thereupon advised
Mine Accountant Anderson that Thompson was joining
the Union . Anderson immediately notified Mine Office
Administrator Lunsford and Controller Henning what the
employees had told him about Thompson . Lunsford
inquired whether Anderson had actually seen Thompson's
union card and, when Anderson replied he had not,
Lunsford instructed Anderson to "verify" Thompson's
union membership . On or about March 4 , Anderson asked
to see Thompson 's card . Thompson showed it to him, and
Anderson reported this fact to Lunsford.
On March 5, Henning instructed Anderson to terminate
Thompson at the end of the day and to issue a final salary
check to Thompson drawn on a petty cash account. (This
was not a regular payday, nor are regular salary checks
drawn on such accounts or issued in Nemacolin .) Ander-
son testified he did not know at the time why Thompson
was being discharged and that Henning did not tell him the
reason . Anderson then notified Thompson of his discharge
and gave him a termination check , and, when Thompson
asked for an explanation , Anderson said, "I don't have a
reason ." Thompson thereupon telephoned Henning, and
Henning told him he was discharged for not performing as
an "assistant mine accountant" in a suitable manner.
Thompson replied that he was not an "assistant mine
accountant." A day or two later, Thompson sought an
explanation for his discharge from Mine Superintendent
James Conrad . Conrad gave no reason , but said he would
get something in writing from his own corporate superior,
Chester Stone , the president of Nemacolin Mine Corpora-
tion . Thompson then called Stone and was advised by the
latter that Stone "backed" the decision to fire Thompson
but that he (Stone) would not tell Thompson why he was
fired . Lunsford also testified that, although he was the
"personnel and labor relations man," he did not know the
reason for the discharge and that Superintendent Conrad
told him that orders for the discharge came from higher
corporate authority in Pittsburgh.
The following month , in connection with a claim filed by
Thompson for unemployment benefits , Respondent ad-
vised the Commonwealth of Pennsylvania that it had
terminated Thompson for "refus[ing] promotion." This
was Thompson 's first indication of Respondent 's purported
reason for his discharge . Thompson was never warned or
reprimanded during his entire period of employment with
Respondent and, according to Henning, he had never been
told that he would be terminated should he turn down the
mine accountant promotion offered him in September and
which he declined . Thompson had received four wage
increases during his employment , the last one about 2
months after refusing the mine accountant position.
Respondent 's Supervisory Contention
In support of its contention that Thompson was a
supervisor within the meaning of Section 2(11) of the Act
and therefore beyond the Act's protection, Respondent
asserts that Thompson was hired as a supervisor and was
considered as such by his supervisors , that he effectively
recommended the direction of the employees to work
overtime , that he was not on the eligibility list prepared by
Respondent in the aforementioned representation case,
and that - although there was no discussion of the matter
- the Union made no objection to Thompson's omission
from such list. (Lunsford testified that he prepared the list
and that he omitted Thompson's name because he believed
Thompson to be a supervisor .) Respondent also asserts in
support of so-called secondary criteria of supervisory status
that Thompson had his own private office and his own
listed telephone as representative of the accounting
department, that he had insurance and pension benefits
not given to nonsupervisors , and that he was paid a straight
salary and received a higher wage than other nonsupervi-
sors in the accounting department. Respondent further
asserts that Thompson was given authority to transmit
instructions and the responsibility for the purchase of coal,
he had access to confidential information , and he was put
in charge of other personnel in the office each time his
supervisor left.
Until his discharge , Thompson had never been told that
he was a supervisor or that he was "assistant mine
accountant." The record establishes that Thompson had
never hired , fired, suspended, laid off, disciplined, repri-
manded, promoted , granted overtime , vacation time or
time off, assigned or independently distributed work,
interviewed job applicants, or processed employee griev-
ance or otherwise handled labor relations matters for
management, and he had never been authorized to take
any such action . Except for one occasion discussed
hereinafter , he had never effectively recommended such
action . He never committed Respondent's credit and he
also never attended management meetings.
On one occasion Thompson did ask Mine Accountant
Anderson to grant overtime to two employees to enable
them to meet work schedules, and Anderson authorized the
overtime. Anderson testified that he occasionally left the
office for a period of 1 day and that he would tell
Thompson to handle any particular problems and to make
sure the office work proceeded on schedule. Although
Thompson denied that he was ever left "in charge" of the
office , Anderson testified that he never told Thompson that
Thompson was the "acting mine accountant" during his
occasional absences, and he further testified in this
connection that the accounting employees worked on a
routine basis and that the work was such as not to require
daily assignments . With respect to the claim that Thomp-
son was responsible for purchasing coal, the record shows
that this responsibility was for "the accounting" of such
purchases.
The record as a whole does indicate that , by reason of his
experience and competency, Thompson was a valuable
employee in the accounting department . But while, as
Respondent properly asserts , the enumerated powers listed
in Section 2(11) are to be read in the disjunctive, the
section also "states the requirement of independence of
judgment in the conjunctive (i.e., in connection) with what
goes before" and the individual thus must consistently
display true independent judgment in performing one of
the functions in Section 2(11). Poultry Enterprises, Inc. v.
N.L.R.B., 216 F.2d 798, 802 (C.A. 5, 1954); N.LRB. v.
City Yellow Cab Company, 344 F.2d 575, 580-582 (C.A. 6,
1965). Also see N.LR.B. v. Meadow Creamery, Inc., 215
BUCKEYE COAL CO. 661
F.2d 247, 251 (C.A. 3, 1954); N.L.R.B. v. Southern
Bleachery & Print Works, Inc., 257 F.2d 235, 239 (C.A. 4,
1958), cert. denied 359 U.S. 911 (1959); N.L.R.B. v.
Security Guard Service, Inc., 384 F.2d 143, 146-151 (C.A. 5,
1967); The Journal-Times Company, 209 NLRB 745, 747-
748 (1974) (where "assistants" to the "pressmen in charge"
were not statutory supervisors even though they occasion-
ally substituted for their supervisor and received higher
wages than other nonsupervisory employees); Complete
Auto Transit, Inc., 214 NLRB 425, 426-427 (19"') (where
"foremen" were not statutory supervisors despite their
titles and even though they were salaried and shared in
some supervisory benefits); Cubit Systems Corporation, 194
NLRB 622, 623-624 (1971); Hilton-Burns Hotel Co., Inc.,
167 NLRB 221, 222 (1967) (where possible future assign-
ment to supervisory work was itself insufficient to satisfy
the statutory definition).
Further discussion is unnecessary to find, as I do, that
Thompson neither exercised nor was empowered to
exercise supervisory authority and that he was not a
supervisor within Section 2(11) of the Act.
Respondent's "Managerial" Contention
Respondent contends, as indicated above, that even if
Thompson were fired for union reasons and even if he not
be found to have been a statutory supervisor, he was
nonetheless hired as a "management trainee" and therefore
outside the protection of the Act as a "managerial"
employee. Respondent relies in this connection on
N. L.R.B. v. Bell Aerospace Company, Division of Textron,
Inc., 416 U.S. 267 (1974), and Curtis Industries, Division of
Curtis Noll Corporation, 218 NLRB 1447 (1975).
In holding in Bell Aerospace that employees properly
classified as "managerial" are outside the Act, the Supreme
Court indicated its approval of the definition of "manageri-
al employees" as those who "formulate and effectuate
management policies by expressing and making operative
the decisions of their employer" (416 U.S. at 288). The
Court further stated that "the specific job title of the
employees involved is not in itself controlling. Rather, the
question whether particular employees are `managerial'
must be answered in terms of the employees' actual job
responsibilities, authority, and relationship to manage-
ment" (416 U.S. at 290). The Board consequently held that
"management trainees" involved in Curtis Industries were
within the "managerial" exclusion, and it stated in part as
follows (218 NLRB 1447):
All of the management trainees either advance into
management positions or leave the Respondent's
employ. Management trainees are recruited and hired
because of their special educational backgrounds;
accept employment with a designated managerial goal
in mind; remain with the Employer only if they
successfully complete the program; are paid a substan-
tially higher rate of pay than regular employees in
equivalent positions; and have dissimilar conditions of
employment from those of regular employees. More-
over, the management trainees are given the same
fringe benefits as supervisors and managerial employ-
ees rather than those enjoyed by regular employees.
Inasmuch as these management trainees have been
shown to have no alternatives other than to be placed
in management positions ultimately or to leave the
employ of the Employer, we agree with the Administra-
tive Law Judge that their interests are aligned with
management rather than with regular employees and
that, therefore, they are part of management under the
decision of the Supreme Court in Bell Aerospace, supra.
Our dissenting colleague argues that because "their
present job responsibilities [consist ] solely of non-
discretionary rank-and-file work," their status as
management trainees is not "inconsistent with their
participation in a labor organization ." In our view,
however, the attitudes, outlook, sympathies, and orien-
tation of the management trainees are likely to be far
more greatly influenced by the management status for
which they are training and which they hope to receive
in the near future than by the type of work to which
they are assigned for admittedly brief periods as part of
their training.
Thompson had a college degree in accounting and his
educational background undoubtedly was a factor in
Respondent selecting him for the accounting department.
(The record does not disclose the scholastic background of
other employees in the department.) And Mine Account-
ant Lunsford told Thompson on the first day of Thomp-
son's employment in 1973 that "there would be a need for a
mine accountant [a managerial position] and these posi-
tions could be available to him." As indicated above,
Thompson did have a private office and telephone line and
did enjoy certain fringe benefits not offered to other
nonsupervisory personnel.
However, Thompson was never told, nor were any other
employees told,2 that he was a management trainee and
that his only options upon successful completion of a
training program were that he would either be promoted or
leave Respondent's employ. When Thompson declined
advancement to the mine accountant position in Septem-
ber 1975, he was not even then informed that he had been
in a training program and that he would be terminated
unless he accepted the promotion. Despite Thompson's
refusal of a promotion, Respondent gave him a substantial
wage increase 2 months later.
Lunsford testified that he (Lunsford) was instructed
when Thompson joined his department that Thompson
was to be his assistant and that he was to train Thompson
to become a mine accountant. Lunsford testified he did tell
Thompson he expected Thompson to learn all jobs in the
department, and Thompson presumably did so and
undoubtedly became a most valuable employee. For 2
years, meanwhile , Thompson worked alongside the other
accounting department employees and did the variety of
functions performed by them, and, to repeat, not a word
was said to him that he was being groomed for advance-
ment and that he would be terminated should he decline a
managerial promotion.
2 Compare Helena Laboratories Corporation, 225 NLRB 257 (1976)
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To find Thompson to be a "managerial" employee would
be an unwarranted stretching of that concept in the
circumstances of this case, and I accordingly conclude that
Thompson was an "employee" within the meaning of
Section 2(3) of the Act and that he was not a managerial
employee under the Bell Aerospace and Curtis Industries
cases.
began his employment on April 5, 1976 . Anderson's
testimony is to the effect that Mallet and other applicants
were interviewed by him and Henning and that these
interviews did not take place until either the weeks of
March 13 or March 20. (It is recalled that Thompson was
discharged on March 5.)
The Reason for the Discharge
Claiming that it discharged Thompson for cause , having
nothing to do with Thompson's joining the Union,
Respondent's brief asserts "that Thompson was hired to
train and supervise and he knew it; that Thompson did not
supervise well; that he refused to work overtime without
compensation ; that Thompson refused the promotion for
trainee to Chief Mine Accountant [inadvertent nomencla-
ture for mine accountant ]; and that Thompson was
emotionally incapable of even taking auditors out to
lunch ." Taking up these items seriatim: Thompson was not
a supervisor , he did not know he was, and Respondent
knew he did not want to be a supervisor ; the claim that he
"did not supervise well" is based on an unwarranted
assumption that he was a supervisor and on Lunsford's
conclusionary statement that is unsupported unless it refers
to the later item about not taking auditors out to lunch
(this occurred on one occasion in 1974 and did not deter
Respondent from offering the mine accountant job to
Thompson in 1975); the overtime matter involved a single
incident early in February 1976 when Thompson, who was
salaried , purportedly did not want to work overtime unless
he received overtime compensation. (Henning testified that
Thompson worked overtime before and after this incident
and that he (Henning) had already determined on the basis
of Thompson's refusal of a promotion in September that he
did not want to continue Thompson 's employment "for a
long period of time.")
Finally, we reach the matter of refusing the promotion,
which was the reason Respondent gave the State for
terminating Thompson. Henning and Anderson testified to
a discussion they had concerning Thompson on or about
February 12, 1976, and Henning testified that he decided
on that occasion that Respondent would fire Thompson
because Thompson was "an assistant mine accountant who
really wasn't interested in moving up the line ." Henning
testified that he thereupon contacted a personnel agency
on February 19 with respect to obtaining a replacement for
Thompson. Henning further testified that , for reasons of
workload in the accounting office, he did not terminate
Thompson immediately , and that he wanted to maintain
Thompson's services until a replacement was found.
According to Henning, his own corporate superiors or
peers also counseled him not to terminate Thompson "until
we could have a replacement." Anderson also testified that
the decision to discharge Thompson was made on Febru-
ary 12 and that it was decided not to implement the
decision until "we found a suitable replacement."
Henning further testified that he received resumes of
applicants for Thompson's job, that "we" interviewed
someone on February 25, that he received a resume from a
Mr. Mallet in the latter part of February, that Respondent
offered the job to Mallet in mid-March , and that Mallet
Concluding Findings
This case involves a highly competent employee who is
precipitously discharged upon Respondent 's "verification"
of his union affiliation . Although Respondent purportedly
made a decision to release Thompson long before Thomp-
son joined the Union and it purportedly also decided not to
effectuate the decision until a "suitable replacement" be
found, Respondent discharged Thompson before offering a
job to his replacement or, according to Anderson's
testimony, before even interviewing any applicants for the
job. Only one inference is tenable in my opinion upon
consideration of all the facts and circumstances relating to
Thompson's termination. I conclude that Respondent
discharged Thompson for joining the Union and for no
other reason.
CONCLUSIONS OF LAW
1. Nemacolin Mines Corporation is a successor to
Buckeye Coal Company and both are employers within
Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO-CLC, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. Ralph Thompson was an "employee" within the
meaning of Section 2(3) of the Act and was not either a
supervisor within the meaning of Section 2(11) of the Act
or a managerial employee excluded under the Act.
4. By discharging Thompson on March 5, 1976,
Respondent has violated Section 8(a)(1) and (3) of the Act.
This conduct affects commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action , including reinstating
and making Thompson whole , in order to effectuate the
policies of the Act . All backpay computations shall be in
accordance with F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). In accordance with discussion of the matter at the
hearing, the order will be issued against Nemacolm Mines
Corporation as successor to Buckeye Coal Company.
Upon the foregoing findings and conclusions of law, and
upon the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
BUCKEYE COAL CO. 663
ORDERS
The Respondent, Nemacolin Mines Corporation, succes-
sor to Buckeye Coal Company, Nemacolin, Pennsylvania,
its officers, agents, successor, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees for joining United Steelworkers of America,
AFL-CIO-CLC, or any other union.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Ralph Thompson reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole as set forth
in "The Remedy" section, above, for any loss of earnings
suffered as a result of the discrimination against him.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this recommend-
ed'Order.
(c) Post at its accounting office in Nemacolin, Pennsylva-
nia, the attached notice marked "Appendix." 4 Copies of
said notice, on forms provided by the Regional Director for
Region 6, after being duly signed by Respondent, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
accounting department employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that the notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
3 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herem 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.
4 In the event that the Board's 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL reinstate Ralph Thompson and make him
whole for earnings lost since his discharge.
WE WILL NOT discharge or otherwise discriminate
against employees for joining United Steelworkers of
America, AFL-CIO-CLC.
NEMACOLIN MINES
CORPORATION, SUCCESSOR
TO BUCKEYE COAL
COMPANY