Buckhorn Hazard Coal Corp.

National Labor Relations Board - Board Decisions

Dec 15, 1971

194 N.L.R.B. 557 (N.L.R.B. 1971)

BUCKHORN HAZARD COAL CORP. 557
Buckhorn Hazard Coal Corporation and Edward
Walker, Jakie Melton, Curtis Colwell, Walter
Walker, John Watkins, and Marcillous Stacy.
Cases 9-CA-5977-1, 9-CA-5977-2,
9-CA-5977-3, 9-CA-5977-4,9-CA-6032-1, and
9-CA-6032-2
]December 15, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 5, 1971, Trial Examiner Josephine H.
Klein issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting 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 Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt her
recommended Order to the extent consistent
herewith.'
The Trial Examiner found, in part, that Respondent
discharged the Charging Parties in violation of
Section 8(a)(3) and (1) of the Act by closing its deep
mine on November 2, 1970. Respondent contends
that it closed its deep mine solely because the coal
produced was of poor quality. We find merit in
Respondent's position.
The deep mine was closed after Respondent's sole
customer had complained about the quality of the
coal. President Van Horne and his assistant, Wom-
bles, decided that the poor quality of the deep-mine
coal had caused the customer's complaints and
therefore closed the mine on November 2. On
November 3, Van Horne inspected the mine and
decided that the mine should be reopened on a
reduced one-shift basis for the purpose of searching
for higher quality veins of coal. We note that neither
Van Horne nor Wombles committed any of the other
violations of the Act found by the Trial Examiner,
and that they had known of the union activity for at
least 2 months prior to closing the mine. For these
reasons, we find that Respondent did not violate
Section 8(a)(3) and (1) of the Act when it closed its
deep mine.
On the other hand, while Superintendent (or
Foreman) Baker did not participate in the decision
regarding closing the mine, Van Horne did make him
primarily responsible for selecting those of the laid-off
employees to be recalled for the reduced operation of
194 NLRB No. 88
the reopened mine. The Trial Examiner found that
Baker knew the identity of the employees who had
signed union cards. All of the Charging Parties had
signed such cards. On November 6, the day following
the reopening of the mine and Baker's recall of some
of the laid-off employees, Baker told two of the
Charging Parties, one of whom had less seniority than
any of the other Charging Parties, that they had not
been recalled because of their union sympathies.
These circumstances, together with the several threats
made to employees by Baker in violation of Section
8(a)(1) of the Act, clearly establish that Respondent
discriminated against the Charging Parties in viola-
tion of Section 8(a)(3) and (1) of the Act by not
recalling them on November 5, 1970, and thereafter,
in order to discourage union membership.
Since Respondent subsequently offered all the
Charging Parties, except Colwell, reinstatement to
their former jobs as of February 8, 1971, the Trial
Examiner's recommended Order appropriately reme-
dies the unfair labor practices found, except that
backpay shall be computed from the discrimination
which occurred on November 5, 1970.
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 Trial Examiner, as modified herein,
and hereby orders that Respondent, Buckhorn Haz-
ard Coal Corporation, Hazard, Kentucky, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended Order,
as so modified.
Substitute the attached notice for that of the Trial
Examiner.
i The Respondent has excepted to certain credibility findings made by
the Trial Examiner . It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A 3). We have carefully examined the record and
find no basis for reversing her findings.
Respondent has requested oral argument This request is hereby denied
as the record , the exceptions , and the brief adequately present the issues
and the positions of the parties.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, it has been decided that we, Buckhorn
Hazard Coal Corporation, have violated the National
Labor Relations Act, and we have been ordered to
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
post this notice, and we intend to carry out the order
of the Board and abide by the following:
We give these assurances:
WE WILL NOT threaten that we will close any
part of the mining operations if you choose to have
a union represent you.
WE WILL NOT threaten you with loss of jobs if
you support United Mine Workers of America or
any other labor organization.
WE WILL NOT fire you or take any other action
against you because you have joined or supported,
now support, or will join or support any union.
WE WILL NOT in any other way interfere with
our employees' rights, guaranteed under law, to
organize, to form, join, or assist a union, to bargain
through the union they may choose, to act together
for their mutual aid or protection, or to refuse to
do any of these things.
WE WILL offer to give Curtis Colwell back his
job (or, if that job no longer exists, an equal job)
with the same rights and privileges he would have
if we had not failed and refused to recall him on
November 5, 1970. ,
WE WILL pay to Edward Walker, Jakie Melton,
Curtis Colwell, Walter Walker, John Watkins, and
Marcillous Stacy all pay they lost because we
failed and refused to recall them on November 5,
1970, with 6-percent interest.
All of our employees are free to become or remain,
or to refrain from becoming or remaining, members
of United Mine Workers of America or any other
union.
BUCKHORN HAZARD
COAL CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Federal Building, Room 2407, 550 Main
Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner : This case was tried
in Hazard, Kentucky, on April 6 and 7, 1971, on a
consolidated complaint issued on February 8, 1971,
pursuant to four charges filed on December 11, 1970, and
two on January 20, 1970. The complaint alleged unlawful
threats and interrogation in violation of Section 8(a)(1) of
the Act' in September and October 1970 and discriminato-
ry discharge or layoff of the six Charging Parties on
November 2, 1970, in contravention of Section 8(a)(3).
Respondent's answer denied the substantive allegations of
the complaint and stated affirmatively that Respondent's
deep mine was closed and the employees were "laid off" on
November 2, 1970 , because of the poor quality of the coal
being mined. The answer also stated that some "employees,
not including the Charging Parties, had been recalled on
November 5 to probe the mine partings and that the
remaining employees had later been offered reinstatement
as of February 8, 1971. During the hearing , the complaint
was amended to allege an additional violation of Section
8(a)(1).
All parties were afforded full opportunity to be heard, to
present oral and written evidence , and to examine and
cross-examine witnesses . The parties waived oral argument
and after the hearing the General Counsel and Respondent
filed briefs . Upon the entire record , observation of the
witnesses , and consideration of the briefs , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. Buckhorn Hazard Coal Corporation, Respondent, a
Delaware corporation , is engaged in mining and selling coal
at Hazard , Kentucky . During the calendar year 1970, a
representative period, Respondent sold coal valued in
excess of $50,000 which was shipped from Kentucky
directly to points outside Kentucky. Respondent is, and at
all times material herein has been, an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of
the Act.
B. The Union , United Mine Workers of America, is,
and has been at all times material herein , a labor
organization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Chronology
Respondent commenced its,mining operations in Haz-,
ard, Kentucky, sometime around August 1969. It started
with strip and auger mining operations . In the spring of
1970 it opened a deep mine and around the end of July
started to ship strip and deep -mine coal mixed together to
Georgia Power Company , its sole customer.
Of Respondent's total complement of approximately 60
production , about 25 to 30 normally worked in the deep
1 National Labor Relations Act, as amended (61 Stat 136 , 73 Stat 519,
29 U.S .C Sec 151 et seq )
BUCKHORN HAZARD COAL CORP. 559
mine, on two production shifts of about 1 I or 12 men each,
and a third maintenance shift of around 3 to 5 employees.2
In August 1970 the Union commenced an organizational
campaign. On or about August 25, claiming to hold
authorization cards executed by about 85 percent of the
employees, the Union, orally and in writing, requested
bargaining. Respondent rejected the demand and the
Union filed a representation petition on October 14, 1970.
On November 2, 1970, Respondent ceased operation of
the deep mine. Two or three men worked that day, and
possibly the next day, collaring and timbering the roof at a
dangerously weak point. On November 5, Respondent
resumed deep-mine operations on a limited basis, with one
shift of nine employees, with a tenth added about 2 weeks
later. The 6 Charging Parties were among the 12 employees
not recalled.
A hearing was held on the Union's representation
petition on November 12. On December I1 the Regional
Director issued a Direction of Election. Case 9-RC-8760.
In the election, held on January 6, 1971, the Union was
defeated by a vote of 35 to 12.
On February 1, 1971, Respondent addressed to each of
the deep-mine employees who had not been reinstated,
including each of the present Charging Parties, a letter
offering reinstatement as of February 8, 1971, without
backpay. In the letter, Respondent expressly denied any
violation of law. Two of the Charging Parties have returned
to work for Respondent; three declined reinstatement; the
status of the sixth is discussed below.
B. Section 8(a)(1)
1. Threats
All six Charging Parties testified that foreman Ernest
Baker said that if the Union came into the mine,
Respondent would close down the mine and move the
equipment back to Virginia or West Virginia. Baker,
denying that he had made any such statements, maintained
that he had never discussed the Union or its activities with
any of the employees.
The Charging Parties all impressed the Examiner as
forthright, conscientious witnesses attempting to state the
facts accurately Without embellishment or exaggerations
Their testimony was basically all consistent but without any
of the indicia of prior consultation or rehearsal. Such
conflicts as their testimony contained were minor and
manifestly reflected only faulty memory for small details on
the part of unsophisticated workmen.
Baker, on the other hand, appeared set on supporting
Respondent's position at virtually any cost. On cross-
examination, he equivocated and fenced with counsel.
Baker's testimony contained numerous internal inconsis-
tencies and in several aspects was in conflict with other
evidence adduced by Respondent. Its major thesis, namely
2 However, seniority lists of the employees laid off , introduced into
evidence by Respondent , show only 22 deep-mine employees as of
November 2
3 The only lack of candor on the part of any of the Charging Parties
arose in the cross-examination of Watkins, who was obviously reluctant to
discuss his , and other employees ', apparent dislike of Baker. However,
Watkins was otherwise forthright, testifying unequivocally that Baker never
threatened him with discharge if he joined the Union and that, so far as
a denial of any knowledge of the Union's campaign from its
inception in August 1970 until, at most, a few days before
the Board-ordered election in January 1971, is inherently
incredible.
Hazard is a relatively small community engaged princi-
pally in coal mining. The mines are naturally a matter of
generally interest and concern to the inhibitants. Baker was
the only full-time supervisor at Respondent's deep mine
and, according to his own testimony, spent 10 to 12 hours
per day at the mine. It is totally inconceivable that he could
remain unaware of the Union's organizing campaign even
after the Union, claiming about 85 percent authorization,
demanded recognition and thereafter filed a representation
petition.
Baker denied ever having discussed the Union campaign
with Allen Van Horne, Respondent's vice president, who
lives in Charleston, West Virginia, or with Henry Wombles,
Respondent's land agent and Van Home's resident
assistant. Baker specifically denied having received any
instructions concerning the Union matter. But Van Home
testified that he did "mention it to Mr. Baker in this respect,
that we have certain rights that we can do and can't do and
be careful." While resolutely denying any conversations
with Van Horne or Wombles concerning the Union
campaign or the representation and complaint proceedings,
Baker acknowledged that he had twice conferred with
Respondent's counsel because, in his words: "I always talk
.with my lawyer." However, he was notified of the
appointments with counsel by Respondent's secretary and
there is no evidence that Respondent's counsel has ever
served as Baker's personal lawyer.
Baker was so determined to deny having discussed the
Union that he professed not to recall whether Union
activity had been mentioned in an interview he had had
with a Board agent, with Respondent's counsel present.
When confronted with the fact that he had told a Board
investigator that he had heard rumors of Union' activities
from "citizens ," he then maintained that he had "only
heard one lady tell that and she was telling it to [his] wife."
He even maintained that he had also learned of the election
at Respondent's establishment from a neighbor, who was
foreman of another mine in the area . He claimed to have
paid little attention to such "rumors," saying: "You take
what your neighbors say with a grain of salt most of the
time because these rumors that comes in, there's just a
possibility that there isn't anything to them." He did not
volunteer any reason for not investigating the "possibility"
that there was some factual basis for the rumors.
By leading questions, Respondent's counsel elicited
testimony by John Watkins, the General Counsel's first
witness, that Baker had expressed his own interest in
joining the Union.4 Similar testimony was later adduced on
cross-examination of Walter Walker.5 Such testimony
Watkins knew, Baker did not overhear any conversations among the
employees about the Union
4 Cross-examination of Watkins:
"Q. (By Mr. Ray) Mr. Watkins, when Mr Baker talked to you
about the Union, did he ask you whether the Union would take him as
a member?
A. Yes, Sir."
5 Cross-examination of Walter Walker:
(Continued)
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
belies Baker's denial that he ever spoke of the Umon to any
employees.
On all the "evidence, the Examiner credits the Charging
Parties' testimony and discredits Baker's denials. The
Charging Parties' testimony, however, is confused as to
when Baker threatened that the mine would be closed if the
employees chose to be represented by the Union. Watkins
testified that Baker made the threat in September to
Watkins, Edward Walker, Walter Walker, Curtis Colwell,
and Luther Little .6 The Walker brothers said that Baker
made the threat to that group on or about October 29.
Apparently these three witnesses were referring to the same
incident. Jakie Melton, Marcillous Stacy, and Colwell
testified to similar threats in September. It appears likely
that Baker made all similar statements at or about the same
time. Thus, the Walker brothers were probably in error as
to the date of the statement. Accordingly, the Examiner
finds that the General Counsel has established only that
Baker made such threats in September and will, therefore,
recommend dismissal of the separate allegation of such
threats made on or about October 29.
Jakie Melton also testified that in September Baker said
that he had been instructed by Van Home "to fire anybody
that signed Umon cards." Despite Baker's denial, the
Examiner credits Melton's testimony. Employee Colwell
credibly testified that in the latter part of October Baker
said that Respondent was probably going to get rid of
employee General Patnck because he was "talking this
Union talk up." Patnck was then out sick, and Baker said
that "when he [Patrick] come back [Baker] was going to put
him down on another job and cut his pay" because he was
for the Union. These statements also violated Section
8(a)(1).
Employees Colwell and Watkins testified that late in
October Baker told them that he had advised his two sons,
who also worked for Respondent, "if the Union did come in
to join it and make good Union men, but ... not to take
sides nary way until he found out how it was going to go."
According to Watkins, Baker also indicated his interest in
securing a nonsupervisory job and joining the Union. The
Examiner finds such statements by Baker were not violative
of the Act.
Uncontradicted evidence establishes that in October
Wombles stated that he did not know why the men wanted
a union because they already had the best hospitalization
plan in the area. In his brief, the General Counsel argues
that the statement contravened the Act because it "could
lead the employees to reasonably understand that such
benefits would be achieved without intervention of the
Union, therefore the selection of such representative was
not necessary, expensive and futile." No such violation was
alleged in the complaint and the General Counsel offered
no relevant amendment at the hearing. In any event, the
Examiner believes Wombles' statement was a permissible,
noncoercive expression of opinion and did not constitute
an express or implied threat of withdrawal of the plan if the
Union was chosen or a promise of benefits if the Union was
defeated.?
2. Interrogation
There is no evidence in the record that Wombles
coercively interrogated any employees about the Union or
employee activities in behalf of the Union. Accordingly, the
Examiner will recommend dismissal of the allegation in the
complaint that Wombles interrogated an employee con-
cerning his Union activity.8
3. Request to withdraw charges
Walter Walker testified that on or about March 1, 1971,
he was approached by Baker, who said: "Well, all of them
suits that got filed was just a misunderstanding, you just
ought to drop it." Walker replied that he would not drop his
charge. On cross-examination, Walker denied having told
Baker that the allegations he had made were not true and
that he wanted to drop the charge. He denied having sought
Baker's help in having the charge withdrawn. At the
conclusion of Walker's testimony, the Examiner, over
Respondent's objection, allowed an amendment to the
complaint adding an allegation that Respondent violated
Section 8(a)(1) in asking an employee to withdraw unfair
labor practice charges pending before the Board.
Baker later quoted Walker as having said he had been
"high-pressured into filing these charges and . . . that
everything that they had said was lies . . . and he would
like to get the Company to write a letter withdrawing for
him." Wombles thereafter testified that Walker had
"voluntarily" told Wombles "that the thing was all a
mistake . . . that he had told Mr. Baker he wanted him to
help" have the charge withdrawn. Neither Baker nor
Wombles testified concerning Baker's response to Walker's
request for assistance. Significantly, Wombles did not
quote Walker as having admitted that his allegations
against Baker were untrue. The Examiner discredits Baker's
testimony concerning such an admission by Walker.
The Examiner credits Walker's testimony that Baker
raised the subject and first expressed the opinion that the
charges were "all a mistake" and should be withdrawn.
Although the evidence does not specifically so establish, it
appears that Walker agreed and expressed his willingness to
have the charges dropped.9 However, Baker's statement, as
quoted by Walker, does not appear to have contained any
threat, expressed or implied, that the employment status of
Walker or any other employee would be affected by the
pursuit or withdrawal of the charges. In additional
"Q (By Mr. Ray) Did Mr Baker on this occasion say that he
would like to join the Union also?
A yeah, he did."
6 Like the Charging Parties, Little was let go on November 2 and not
recalled in November He does not now work for Respondent. He was
neither a charging party nor a witness in this case
T The situation is different from that presented in Arland Printing Co,
181 NLRB No 68, cited by the General Counsel. In Arland the Board
found that the Respondent had invited direct dealings by employees with
management and impliedly promised improvement or future benefits as a
result of such direct dealing.
8 Nor is there any evidentiary support for the statement in the General
Counsel's brief that "Baker interrogated employees as to why they
supported the Union " No such interrogation was alleged in the complaint.
9 On questioning by counsel for the Charging Parties, employee John
Watkins, the General Counsel's firsf witness, testified that he had sought to
withdraw his charge. The Examiner, sua sponte, excluded that evidence and
counsel thereupon abandoned his attempt to establish the reason for
Watkins' request.
BUCKHORN HAZARD COAL CORP. 561
testimony, Walker suggested that shortly after the conver-
sation concerning the withdrawal of the charge, Baker
assigned him additional duties. Walker thereupon quit,
saying: I haven't no choice but to quit, I can't do two jobs."
There is perhaps reason to suspect that Baker's imposing
additional duties on Walker was related to the employee's
refusal to seek withdrawal of the charge. However, such a
conclusion would be speculation rather than warranted
inference. This is particularly so because of the absence of
any allegation or contention that Walker's quitting his job
amounted to a constructive discharge. Accordingly, the
Examiner will recommend that the amended complaint be
dismissed insofar as it alleges an unlawful request that an
employee withdraw charges pending before the Board.
The Examiner, however, also rejects Respondent's
argument that "The action of Watkins and Walter Walker
in seeking to withdraw their charges . . . certainly raises an
inference that the statements allegedly made by Baker have
no real basis in fact." Any such requests were apparently
made, if at all, after the complaint had been issued,
following investigation by the Regional Director. The
Board's Regulations (Sec. 102.9) provide that a charge may
be withdrawn only with the consent of the Regional
Director, the Trial Examiner, or the Board, depending upon
the stage of the proceeding. This provision manifestly
reflects the Board's recognition that Charging Parties, being
private parties, may seek to drop charges for reasons
unrelated to, and even inconsistent with, the policies of the
Act. They may, for example, simply want to avoid the
inconvenience and anxiety involved in testifying; or they
may hope to establish or reestablish friendly relationships
with the respondents for their personal benefit; or they may
act out of fear, realistic or not, of reprisals.10 It cannot be
said, as Respondent argues, that "The only reasonable
explanation of their desire to withdraw the charges would
be that they wish to rectify their error in making the charges
naming Baker in the first place."
C. Section 8(a)(3)
When the employees of Respondent's deep mine reported
to work on Monday, November 2, 1970, they were
informed that the mine was closed down because of rock
partings which resulted in poor quality coal. Each employee
was given a "cutoff" slip, reading:
Due to conditions beyond our control (Namely,
Rock partings which prevents our being able to mine
merchantable coal) we regret very much to inform you
that your services will not be needed as of the day and
date written above.
So far as the record discloses, such cutoff notices were given
to the employees on both production shifts and on the
10 It was these considerations which underlay the Examiner 's exclusion
of testimony offered by the Charging Parties' counsel concerning Watkins'
request that this charge be withdrawn
11 Another man was added on November 18.
12 Baker's son apparently continued work during the shutdown, as an
"acting foreman."
13 He testified:
Q. (By Mr. Gravitt) Mr. Moms, you heard the employees talking
about the Union there, say, in October before they were laid off, and
August? .
A No, I didn't hear them.
smaller maintenance shift. However, two or three employ-
ees were kept at work that day and probably the next day
shoring up a weak area in the roof of the mine. On
Thursday, November 5, production was resumed with one
shift of nine men."
At the hearing, Baker, Wombles, and Van Home,
Respondent's representatives, all denied having any
knowledge of the identity of Union supporters or card
signers. The record, however, establishes such knowledge
on Respondent's part.
Employee Curtis Colwell testified that sometime in
October, on the way home from the mine, Baker said that
Dan Morris was keeping him fully advised of the Union
activities and "that he [Baker] knowed every man that
signed union cards." In support of Baker's denial of such
knowledge, Respondent refers to the testimony of Dan
Moms that he never discussed the Union with Baker. In its
brief, Respondent says that Dan Morris and his brother,
Coolidge, "are disinterested witnesses, since they have
nothing involved in this proceeding." However, on the
stand, they both disclosed their antiunion sympathies.
Significantly, they were two of at most three 12 employees
who were not laid off on November 2, and they lost only 1
day's work. Dan Morris initially testified that he "didn't
hear" any employees talk about the Union but then said he
was asked "a couple of times" to sign a Union card. He said
there was "very little" Union talk among the employees 13
but later testified that he knew of the election because "You
could hear it all over the country." However, Baker
maintained that he heard of the election only from a
foreman at another mine, unrelated to Respondent. Several
of the Charging Parties testified that they discussed the
Union at the mine virtually every day, usually at lunch
time.
Baker testified that during the Union campaign he
frequently observed small groups of employees abruptly
discontinue conversations upon his appearance. His
attempt, on cross-examination, to explain the employees'
conduct as reflecting guilt when caught "loafing" was
unconvincing. Jakie Melton's testimony shows that it was
not until after Baker quoted Van Home as threatening to
fire Union card signers that the employees became secretive
about the Union.
On November 6, Edward and Walter Walker, Charging
Parties, returned to the mine to inquire about the possibility
of recall. Walter Walker quoted Baker as then expressing
"his opinion the reason [the Walker brothers] wasn't hired
back, [they] was union sympathizers." Walter Walker, it
may be noted, later served as the Union's observer in the
election.
The evidence of Baker's knowledge of the employees'
Union activities finds support in the small size of the
Q. You never heard them talk about the Union?
A. I knowed they was trying to get in, right... .
Q. You knew these fellows that filed these charges here, didn't
you?.
A. Yes, sir..
Q. You knew they were for the Union , didn't you?
A. I figured they was, yeah . .
Q But there was a lot of talk there amongst the men about trying
to get a Union, wasn 't there9
A. Not amongst the men I knew of, very little. Now and then you
might hear somebody speak about it, that would be all.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establishment and the fact that Baker, according to his own
testimony, was present for 10 to 12 hours every day.
Additionally, Hazard is a small, closely knit community
engaged almost exclusively in mining. Under the circum-
stances, it would be virtually impossible for the details of
any union organizing campaign to remain secret to any
extent.
The Examiner credits the Charging Parties' testimony
and discredits Baker's denials.14 The credited evidence
establishes superintendent Baker's knowledge of the
Charging Parties' Union sympathies before the layoff on
November 2.
As previously mentioned, the Union, claiming authoriza-
tion by about 85 percent of Respondent's employees, made
oral and written requests for bargaining early in September
and filed a representation petition on October 14. On
Monday, November 2, the deep mine was abruptly closed
without any advance notice. It was then reopened with a
single shift, composed of employees selected from all the
three shifts previously employed. Among the 12 employees
not recalled on November 5 were the 6 Charging Parties, all
Union supporters. At the representation hearing held a
week later, Respondent maintained that the unrecalled
employees were ineligible to vote because they had no
reasonable expectation of recall. And at the election, held
on January 12, Respondent challenged the present
Charging Parties on the ground that they were no longer
employees.
In its brief in the present case Respondent contends that
threats to close the mine could not have coerced the
employees because "The employees at the deep mine' knew
that Buckhorn could not remove its mine machinery to any
other location until Kentucky River (the land company)
gave permission to abandon the . . . property . . . [and]
the employees knew that Buckhorn would not abandon its
investment in the mine until the merchantable coal had
been removed...." Yet the shutdown on November 2 was
not then announced as either temporary or partial. If
Respondent intended to mine all the coal, presumably it
intended also to resume full,production, as it eventually
did.
The abruptness and timing of the mine shutdown and
only partial resumption of operations, with selective recall
of employees, establish a prima facie case of discriminatory
action violative of Section 8(a)(3). N.L.R.B. v. Montgomery
Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert. denied, 355
U.S. 829; N.L.R.B. v. Pembeck Oil Corp., 404 F.2d 105, 110
(C.A. 2), remanded, 395 U.S. 828; N.L.R.B. v. Mid State
Sportswear, Inc., 412 F.2d 537, 539 (C.A. 5). "The Company
had the burden to come forward with an adequate
explanation for discharging [the employees] once a prima
facie case of possible discrimination had been established
by the General Counsel." N.L.R.B. v. Standard Container
Co., 428 F.2d 793,794 (C.A. 5).
To rebut the prima facie showing of discrimination,
Respondent maintains that the mine was closed on
November 2 because the rock content of the mine product
was so high as to render the coal unmerchantable. In
explanation of the almost immediate resumption of a
single-shift operation, Respondent asserts that, after
inspecting the shutdown mine, Van Home decided to move
ahead in the hope of working through the bad area into
better material.
Respondent's basic factual contention is that it desired to
produce relatively less deep-mine coal, which was "dirty"
(i.e. contaminated by rock and other noncombustible
materials), to mix with its strip and auger mined coal, which
was "clean." According to Respondent, the deep-mine coal
could be rendered merchantable only by being "diluted"
with its "clean" strip and auger coal.15 According to Van
Home, the usual ratio of strip (including auger) to deep-
mine coal is 5 to 1. Although no representative of
Respondent expressly so testified, its position presumably is
that the "dirty" quality of its deep-mine coal required an
increase in the proportion of strip coal, and, since
Respondent has only one tipple, a desirable ratio could be
achieved only by reducing the amount of coal being
removed from the deep mine.
Respondent's evidence, however, does not support this
view. Respondent called John Harsany, a mechanical
mining engineer, who had examined the mine on February
16, 1971, for the purpose of testifying in this proceeding.
Through him, Respondent introduced into evidence a map
of the mine, with a chart or graph purporting to show the
progressive deterioration in the quality of the coal in the
months preceding November. In connection with the
graph, there appears the following note: "RISE IN
REJECT-MONTH OF OCTOBER 1970 and SAME
TIME A 33.3 PERCENT DROP IN STRIP PROD-
UCTION RESULTED IN BEING FORCED TO WORK
ONE SHIFT ON NOVEMBER 5, 1970." In his extensive
testimony, Harsany was not asked about this note and he
did not undertake to clarify or explain his reference to "a
33.3 percent drop in strip production."
Harsany's testimony is generally unreliable. He equivo-
cated or contradicted himself as to whether he had
examined Respondent's production and sales records. He
said that he could with reasonable accuracy determine the
particular area of the mine being worked at different times
on the basis of information he had concerning the number
of manhours worked and the type of equipment being used.
However, after considerable equivocation, he conceded
that he did not know either the quantity or the quality of
the strip-mine coal available to Respondent for mixing with
the "dirty" deep-mine coal. Such information would appear
indispensable to his statement that "by reducing the volume
of reject by cutting off one shift [Respondent was] able to
dilute this coal . . . by diluting it they reduced the ash
content and were able to sell the coal" and his "expert"
opinion that this consideration constituted "good and
sufficient reasons" for the shutdown and partial resumption
of deep-mine operations in November.
Respondent provided no enlightenment. The two-shift
strip-mining operation was not reduced when the deep
mining was. Van Home testified that before the shutdown,
as the employees became familiar with the equipment,
14 Perhaps most incredible in Baker's testimony was his statement that 15 At one point, however, Van Horne testified that deep-mine coal is
he did not know whether- his own son, who worked at the mine, had signed generally considered better than strip coal because of its higher BTU
a Union card content.
BUCKHORN HAZARD COAL CORP. 563
deep-mine production steadily increased and additional
strip-mining equipment was then obtained to "bring our
strip tonnage to . . . almost a five-to-one ratio and this
exists as of now." On such facts, a temporary reduction in
deep-mine operations would have appeared economically
dictated . But the shutdown was attributed to the quality,
rather than the quantity , of the deep-mine coal, and the
shutdown was not announced as temporary , Van Horne
testifying at the representation hearing in November that
the laid-off employees had no reasonable expectation of
recall.
Van Home testified that actual operation of the deep
mine began around June 1970 and as it proceeded the
quality of the coal "got progressively worse ." The sales
price of the coal is based on its BTU content , and tests are
made of each trainload shipped . Although Van Home
testified that his decision to close the mine was based on
examination of reports of these tests, the only figures
submitted showed monthly averages of the BTU and ash
content of coal shipped in October through December.
Such figures could not show a quality deterioration leading
to the shutdown . Further, since the coal shipped was a
mixture of strip and deep-mine, a deterioration, if shown,
could have resulted from an increased proportion of deep-
mine coal without any decline in its quality.
Harsany's chart did purport to show a progressive
deterioration in the quality of the deep -mine product.
According to his theoretical reconstruction of the progress
of the mining operations , production stopped on November
2 at a specified location between two points at which he
made seam sections . These sections showed 47.7 percent
reject just before the shutdown (No. 4) and 55.5 percent at
the postshutdown point (No. 11). However , these two
points appear to be around 200 feet apart and other
portions of his chart show that the reject content may vary
as much as 10 percent within about 20 feet (49 percent at
section No. 7 and 59 percent at No. 8) or 15 percent within
60 feet (44 percent at No. 9 and 59 percent at No. 8).
Dan and Coolidge Morris both testified that before the
shutdown they had measured the rock seams and that one
near the floor of the mine measured 13 to 14 or 15 inches
and one toward the roof was 4 to 6 inches. When asked,
Coolidge Morris was unable to provide any reason why he,
a rank-and-file employee, had measured the rock. In any
event, contrary to Respondent's position and Harsany's
testimony , Coolidge Morris testified that the amount of
rock was about the same before and after the shutdown.
Opposed to Respondent's unimpressive evidence of a
quality depreciation occasioning the abrupt shutdown is
substantial evidence negating such a contention . There is
substantial evidence contrary to Respondent 's unimpres-
sive evidence of an increase in the rock . Colwell worked as
a driller and shooter , i.e., the person who drills holes and
inserts dynamite therein . He testified that the larger the
amount of rock , the more explosive necessary . On October
26 or 27, the week before the shutdown , Colwell, being
instructed by Baker, was drilling six holes at a location
when "Mr. Wombles came up to the face of the coal and
said, `it looks like the rock is going down, just drop it back
down to five.' " At the time of the layoff Colwell expressed
his surprise because there was then less rock than there had
been previously . Baker made no reply. The Examiner
credits Colwell.
John Watkins testified that some 2 or 4 weeks before the
shutdown the lower rock seam had "got considerably
larger," but to the best of [his ] recollection it didn 't go too
far and did not get worse . Edward Walker testified that
about 2 weeks before the shutdown "the rock was running
pretty thick . . . maybe 10 or 12 inches . . . but when they
laid us off, the rock had run down, it had got narrower .. .
about 7 or 8 inches."
Respondent asserts that the persons recalled on Novem-
ber 5 were selected on the basis of seniority and
qualifications . Respondent maintains that , in general, the
most senior employee qualified for a particular job was
recalled . Presumably to establish this position , Respondent
introduced separate lists of the employees who were
recalled and those who were not, with their hiring , dates.
However , it is impossible from these data to determine
whether Respondent did follow its asserted principle since
in many instances there is no information as to the
employees' classification or qualifications . Charging Party
Stacy testified that he was originally hired as a repairman
and eventually did "practically everything to be done in the
mine." Although he had originally been hired on July 24,
1970, he was not recalled on November 5, whereas Pascal
Brewer , who had commenced working for Respondent on
September 28, 1970 , was recalled as an "all around
worker." John Watkins, hired on May 15, was qualified as a
brattice man, shuttle and ramp car operator, and general
worker . At the time of the shutdown he was working as a
brattice man. He was not recalled . The evidence does not
show who was recalled as a brattice man, but Wombles
confirmed that brattice work must be performed in any
mining operation.
Van Home testified that he instructed Baker and
Wombles to secure a seniority list and "to be especially
careful in operating people , in order to select one that
maybe could do two jobs." Wombles and Baker received
the seniority together . Wombles, however , testified that he
did not have any discussion with Baker about choosing
specific employees because they could do more than one
job.
Although Baker and Wombles both testified that Baker
was primarily responsible for choosing the employees to be
recalled, the evidence as a whole indicates that he was
probably given a list of those considered eligible . Several of
the Charging Parties testified that Baker had so stated at the
time . Additionally, Baker testified that it was impossible on
such short notice to secure a full crew to work on
November 5. He was then asked whether he had tried to get
Colwell, who lived nearby . Baker's reply was: "Curtis
Colwell was not on the seniority list." Colwell , however,
had more seniority than two of the employees who were
recalled and Colwell credibly testified that he had been
hired as a handyman "but [he ] worked on everything in the
mine except the joying machine." At the election,
Respondent's counsel referred to Colwell as a "Union
hustler" and apparently objected to Colwell 's alleged
electioneering.
While it does appear that the majority of the employees
recalled on November 5 had relatively high seniority, the
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
detailed evidence does not establish Respondent's conclu-
sory contention that recalls were determined on the basis of
seniority and qualifications alone. The fact that 6 of the 12
employees not recalled were Union supporters appears
something more than coincidence when viewed together
with Respondent's contention at the representation hearing
on November 12 that the laid off employees were ineligible
to vote in an election. Cf. Heinrich Motors, Inc., 153 NLRB
1575, 1581.
On all the evidence, the Examiner finds, as alleged in the
complaint, that the Charging Parties were discriminatorily
laid off or discharged in violation of Section 8(a)(3) and (1)
of the Act.16
Colwell said he doubted whether Baker wanted Colwell
back but Wombles assured him that anybody who wanted
to return would be allowed to. Wombles maintained that he
instructed Colwell to keep in touch with the Company but
Colwell never did call. On all the evidence, the Examiner
finds that the obligation was on Respondent to call Colwell
after he reported on February 8 in accordance with the
original recall letter. Thus, it is found that, as alleged in the
complaint, Respondent has failed and refused to offer
Colwell reinstatement.
CONCLUSIONS OF LAW
D. Reinstatement
The complaint alleges that Respondent "has failed and
refused to reinstate' the Charging Parties.
On February 1, Van Home wrote to each of the
employees who had not hitherto been recalled. The letters
offered reinstatement as of February 8 without backpay,
and concluded as follows:
By making this offer and reinstating you, we do not
admit that we have violated any law or that we illegally
laid you off or that we owe you any back pay, all of
which we expressly deny.
Stacy,17 Edward Walker, and Melton all declined the offer
of reinstatement because they had secured other employ-
ment.
Walter Walker, who served as observer for the Union at
the election in January, did return to work for Respondent
on February 8. As previously set forth, on March 1 or 2,
Baker told Walker that he "ought to drop" his charge
against Respondent and Walker replied that he "aint
dropping it." A few days thereafter, Baker issued instruc-
tions that Walker was to set line timbers. Walker thereupon
quit, saying: "I haven't no choice but to quit, I can't do two
jobs." While it may be that Walter Walker was construc-
tively discharged on March 5, the complaint contains no
such allegation. The Examiner believes the evidence is
insufficient to establish that Walker's reinstatement on
February 8 was less than complete.
On February 8, John Watkins went to the mine. Wombles
said that the reinstatement offers, written by Van Home,
had come as a surprise and thus Wombles was not able
immediately to activate a night shift, where Watkins was to
work. Watkins therefore did not resume work for
Respondent until the following week, on February 15.
Colwell testified that he had gone to the mine on
February 8 with Watkins. Wombles said that Colwell, who
had been on the day shift at the time of the shutdown, was
to be put on the night shift and Wombles would get in
touch with him. Wombles never did so. Colwell further
testified: "After I found out the boss' [Baker's ] son had my
job, I knowed I wasn't going back." Wombles testified that
16 Since the evidence suggests that the entire elimination of the second
production shift and the smaller, maintenance (third) shift may have been
discnmmatorily motivated , other discharges may have been violative of the
Act. Novelty Products Co, 170 NLRB No 68, O'Keefe Electric Co, 158
NLRB 434, 438, enfd. 391 F.2d 589 (C.A 9). However, as the complaint
covers only the six named Charging Parties, the findings herein are limited
to them.
1. By threatening employees with closure of Respon-
dent's deep mine in Hazard, Kentucky, with consequent
loss of employment if the employees chose to be
represented by the Union, and with loss of employment to
employees who signed Union authorization cards, Respon-
dent interfered with, restrained, and coerced employees in
the exercise of their rights under Section 7 of the Act,
thereby engaging in unfair labor practices within the
meaning of Section 8(a)(1).
2. By closing its deep mine on November 2, 1970, and
then reopening on only a one-shift basis on November 5,
1970, thus discharging or laying off Edward Walker, Jakie
Melton, Curtis Colwell, Walter Walker, John Watkins, and
Marcillous Stacy, in order to discourage Union activities,
Respondent has discriminated in regard to hire and tenure
of employment in violation of Section 8(a)(1) and (3) of the
Act.
3. By failing and refusing to offer Curtis Colwell
reinstatement to his former employment, Respondent has
discriminated in regard to hire and tenure of employment,
in violation of Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. It has not been established that Respondent engaged
in unfair labor practices other than those specified above.
THE REMEDY
The recommended Order will contain the conventional
provisions in cases involving findings of interference,
restraint, coercion, and discriminatory discharge in viola-
tion of Section 8(a)(1) and (3) of the Act. These will require
Respondent to cease and desist from the unfair labor
practices found, to offer reinstatement to Curtis Colwell,
and to compensate all six discriminatees for any loss of
earnings caused them by the discrimination found, back
pay to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
As the unfair practices committed by Respondent are of a
character striking at the root of employee rights safeguard-
ed by the Act, the Examiner will recommend issuance of a
17 On cross-examination , Stacy testified that sometime in December he
received a telephone call from Baker. Stacy denied having said that he did
not want to return to work for Respondent. According to Stacy, Baker
merely inquired whether Stacy was then working elsewhere . The Examiner
finds that Stacy was not offered reinstatement before the letter of February
l
BUCKHORN HAZARD COAL CORP. 565
broad cease-and-desist order. Brad's Machine Products,
Inc., 191 NLRB No. 15.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, the Trial Examiner hereby issues the following
recommended: 18
ORDER
Respondent, Bucldlgrn Hazard Coal Corporation, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with mine closure or loss of
jobs if they chose to be represented by a union;
(b) Threatening employees with loss of jobs if they sign
union authorization cards;
(c) Discouraging membership and activities in any labor
organization by discriminating in regard to hire and tenure
of employment of Respondent's employees;
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to, effectuate the policies of the Act.
(a) Offer Curtis Colwell immediate and full reinstatement
to his former job, or, if that job no longer exists, to a
substantially equivalent job, without prejudice to his
seniority and other rights and privileges;
(b) Make Edward Walker, Jakie Melton, Curtis Colwell,
1s In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herem shall , as provided in
Section 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.
19 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
Walter Walker, John Watkins, and Marcillous Stacy whole
for any loss of pay they may have suffered as a result of
their discharge, in the manner set forth in "the Remedy"
section herein;
(c) 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 under the
terms of this Order;
(d) Post at its office and mining locations in Hazard,
Kentucky, copies of the attached notice marked
"Appendix." 19 Copies of said notice, on forms provided by
the Regional Director for Region 9, after being duly signed
by Respondent's representative, shall be posted by it
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.20
It is further ordered that the amended complaint be, and
it hereby is, dismissed insofar as it alleges unfair labor
practices other than those found herein.
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
20 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 9, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."