C & G Coal Corp.

National Labor Relations Board - Board Decisions

Feb 22, 1980

247 N.L.R.B. 1326 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C & G Coal Corporation and United Mine Workers of
America. Case 10-CA-14191
February 22, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On October 22, 1979, Administrative Law Judge J.
Pargen Robertson issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions.
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 has
decided to affirm the rulings, findings, and conclu-
sions' of the Administrative Law Judge and to adopt
his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, C & G
Coal Corporation, Hamilton, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Delete paragraph l(c) and substitute the follow-
ing:
"(c) Issuing warnings or reprimands to its employ-
ees because they engage in protected activities.
"(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act."
2. Add the following at the end of paragraph 2(a):
"and expunge the written warnings issued to Joel
Peoples on October 11, 1978, from his personnel file."
3. Substitute the attached notice for that of the
Administrative Law Judge.
I In doing so we do not agree with the Administrative Law Judge's
conclusion that use of written warnings constituted disparate treatment, when
in fact it had only recently been suggested by the arbitrator who handled the
grievance concerning the first dicharge of Peoples. Nor do we rely on sec.
i.A, par. 8, in light of testimony of union committeeman Hicks. not mentioned
by the Administrative Law Judge. corroborating Barton's testimony as to the
rock truck being undamaged on completion of the night shift on October 12
and not driven until serviced by Peoples the following morning. Our
conclusions do not alter the result. however, as in our view, the Administra-
tive Law Judge's crediting Peoples' testimony that he was discharged on
September 22 when he asked to join the Union and that he was again
247 NLRB No. 179
threatened by McGuire about causing "trouble" (i.e., engaging in protected
union activity) when he returned to work on October 6, following the
arbitration proceeding supports the finding that Respondent's motivation in
issuing the warning notices and in discharging Peoples again on October 14
was to retaliate for Peoples' earlier union activity.
' We find the narrow "In any like or related manner" cease-and-desist
language adequate to remedy the violations herein, and we shall modify the
recommended Order and notice accordingly. See Hiekmott Foods. Inc.. 242
NLRB 1357(1979).
Additionally, the General Counsel excepts to the Administrative Law
Judge's apparent inadvertent failure to include in his recommended Order a
proscription against Respondent's issuing reprimands to employees because of
their union activities, and to require that the reprimands issued to Joel Peoples
on October 11 1978, found unlawful herein, be expunged from his records.
We find merit in the exception and shall amend the recommended Order and
notice accordingly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees that
they should not cause trouble by insisting on
joining the United Mine Workers of America, or
any other labor organization.
WE WILL NOT issue warnings or reprimands to
our employees because they engage in union or
other protected activities.
WE WILL NOT discharge our employees for
insisting on joining a labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them by
Section 7 of the Act.
WE WILL offer Joel Peoples immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges previously enjoyed.
WE WILL make Joel Peoples whole for any loss
of earnings he may have suffered as a result of our
discrimination against him, plus interest, and WE
WILL expunge from his personnel file the written
warning notices discriminatorily issued to him on
October 11, 1978.
C & G COAL CORPORATION
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge: This
case was heard on July 27 and August 17, 1979, in
Hamilton, Alabama. The charge was filed on December 29,
1978, and amended on February 26, 1979. The complaint,
which was amended at the hearing, issued on March 15,
1979. Respondent is alleged to have violated Section 8(a)(3)
by discharging an employee on September 22, and again on
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C & G COAL CORP.
October 14, 1978, and by issuing two written reprimands to
that employee on October I I, 1978.
Upon the entire record and from my observations of the
witnesses, and after due consideration of oral arguments by
counsels for the General Counsel, Respondent, and the
Charging Party, I hereby make the following:
FINDINGS AND CONCLUSIONS
The Evidence
Respondent is engaged in mining and selling coal at
Hamilton, Alabama.' At material times Respondent and the
Union (Charging Party) have been parties to a collective-
bargaining agreement.
On September 1, Respondent's President Harvey
McGuire met with his employees. McGuire informed the
employees that it would be necessary for him to purchase
additional earthmoving equipment in order to comply with
the terms of the Reclamation Act. David Barton, an
admitted supervisor, testified that McGuire told the employ-
ees "that he was going to either have to buy some more
equipment or just about go out of business because we
couldn't do the reclamation with what we had." McGuire
told the employees that he would also have to form two
companies, one nonunion and the other union with the old
people that were already in the Union. At the time of this
meeting the alleged discriminatee, Joel Peoples, who was
hired in early July 1978 as a laborer, had not joined the
Union.
Around September 15, Joel Peoples asked his foreman,
David Barton, if he could join the Union. Barton told
Peoples he would talk to Harvey McGuire about Peoples'
request. Several days later Peoples asked again. Barton
replied, "Mr. McGuire said that he started out with four
employees [in the] union and that's the way he was going to
leave it ... ."2 Peoples testified that after talking to Barton
he asked Harvey McGuire why he could not join the Union.
McGuire told Peoples that that was the way he started out
and that's the way he was going to leave it, and if Peoples
was going to cause trouble then he could get his "badge and
go home." McGuire denied having such a conversation with
Peoples.
On September 15 or 16 Respondent received its new
equipment. Peoples was told that it would be necessary for
him to come in an hour earlier, at 6 a.m., to service this new
equipment. Harvey McGuire testified that on the afternoon
of September 21, Peoples asked him if he was going to have
to come in early. When McGuire told Peoples that he would,
Peoples replied, "Well, I'm not coming in early." Peoples
admitted talking with McGuire about coming in early.'
' Neither jurisdiction nor the status of the Charging Party is at issue. The
complaint alleges, the answer as amended at the hearing admits, and I find
that Respondent meets the Board's standards for the assertion of jurisdiction
and is an employer engaged in commerce within the meaning of Sec. 2(6) and
(7) of the Act. Respondent also admits and I find that the Charging Party is a
labor organization as defined in the Act.
Barton admitted that Peoples asked him about joining the Union. Barton
testified that he told Peoples that "I'd just let things rock on like it was for a
while."
'However. Peoples recalled this conversation occurred 2 or 3 weeks prior to
his September 22 discharge, rather than on September 21, as McGuire
testified.
' During its September I meeting with employees, Respondent's President
McGuire asked employees if they had any objection to his forming a nonunion
Peoples testified that he was upset because by coming in at 6
a.m. he would have to work 12 hours a day. During the
evening of September 21, McGuire called Peoples over to his
home. McGuire and Peoples discussed the new schedule.
Both McGuire and Peoples testified that during this evening
meeting they agreed that Peoples would come in at 6 a.m.,
but that the mechanic would stay over in the afternoon to
fuel the equipment, and it would not be necessary for
Peoples to work 12 hours.
During September, Respondent followed through on its
plan announced in the September I meeting with employees,
to form a new, nonunion company, Jakemi Coal. Respon-
dent planned to leave the employees who were union
members in C & G. However, the two employees who had
not as of that time joined the Union would be transferred to
Jakemi. Those two employees, along with new hires, would
constitute Jakemi's work force. Respondent did not contest
that Jakemi was established for the purpose of permitting
use of a nonunion work force to enlarge its operation. On
September 22, Joel Peoples was informed that he was being
transferred to Jakemi.'
Peoples was discharged on September 22. The General
Counsel contends he was discharged because he demanded
to join the Union. Respondent contends Peoples was
discharged because he refused to work.'
On Monday, September 25, Respondent's employees
struck, demanding that all the employees be permitted to
sign dues-checkoff authorizations. On September 26, Re-
spondent agreed to their demands and the strike ended.
Peoples grieved his discharge. Pursuant to the terms of the
collective-bargaining agreement the Union demanded imme-
diate arbitration. During the October 5 hearing, Arbitrator
Jack Clarke ruled from the bench that Peoples' "discharge
was procedurally defective to such an extent that reinstate-
ment of the Grievant was necessary .... " The arbitrator
made his ruling during Respondent's case and before the
Union and Peoples put on any evidence.
Peoples returned to work on October 6. Peoples testified
that during the morning of October 6, Harvey McGuire
called him over and told him that he "had messed
(McGuire) up and that (Peoples) had better stay out if his
way." McGuire, he told Peoples "that he'd caused all the
trouble that he needed to cause and I just wanted him to do
his job and just go on and not cause anymore trouble."
On October 11, Peoples received two written reprimands.
The written reprimands, which were the first written
reprimands issued to employees,' alleged that Peoples left
the "cap house and powder trailer" unlocked and that
Peoples "neglectfully or willingly ran into a large boulder,
company. No one objected to that plan. However, Joel Peoples understood
there was to be another meeting before the employees approved or rejected the
nonunion portion of McGuire's plan. Respondent on the other hand
concluded that, since the employees did not object. they agreed to McGuire's
plan.
' See the discussion in the following section.
I David Barton first testified that none of Respondent's employees had
received a written reprimand prior to Peoples. Barton then changed his
testimony saying he believed there had been some others but he couldn't recall
who. Later, when Barton was called during Respondent's case, he testified
that Respondent did not have a written warning system prior to Peoples'
October 5 arbitration hearing. According to Barton, Respondent started the
written warning system at that time upon the suggestion of the arbitrator that
Respondent "keep records of everything we do."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a company owned explosive truck carrying explosives."
Barton testified that he watched Peoples drive the explosive
truck straight into a big rock. Peoples admitted hitting a
rock with the truck but contended that he was unable to
avoid the rock. In regard to the powder trailer, Barton
testified that when he noticed the trailer was unlocked he
told Peoples he had left it unlocked and Peoples did not deny
leaving the trailer unlocked. Peoples testified that he did not
"believe" that he left the trailer unlocked. Peoples protested
the written reprimand, stating: "After taking out explosives
I left the trailer believing it to be locked. I would not break
any company rules or federal laws on purpose."
On October 13, Barton discharged Joel Peoples for the
second time. Barton prepared a "personnel work record"
form regarding the incident which resulted in Peoples'
discharge, stating:
Joel Peoples suspended with intent to discharge, for
bending door on rock truck and pretending that he was
not responsible. Five witnesses on second shift said that
the truck was not bent at the end of their shift.
Damages were done during servicing by Joel Peoples.
Joel has made threats against the company and there-
fore, I feel that it is in the best interest of the company
to permanently discharge him."'
Barton admitted that but for the damage which he alleged
Peoples caused to the rock truck, Peoples would not have
been discharged. General Counsel contends that Peoples was
actually discharged because he insisted on joining the Union.
A. The 8(a)(3) Allegations
The evidence supports General Counsel's allegations that
Respondent acted illegally in twice discharging and issuing
written reprimands to Joel Peoples. In reaching that decision
I was especially impressed by the following factors.
1. Respondent demonstrated through its September I
speech to its employees that it viewed its economic survival,
at least in part, upon its ability to expand its operations with
nonunion employees. According to its President Harvey
McGuire, expansion was necessary to enable it to comply
with the Reclamation Act. Since that expansion included the
purchase of expensive equipment, McGuire asked his em-
ployees if they would permit him to operate a nonunion
company which would include the two employees that were
not members of the Union and all future hires. Joel Peoples
' As to the threats allegedly made against the Company, Barton testified
that he heard Peoples say he did not care what happened to the Company.
' McGuire admitted that Joel Peoples was never paid in accordance with
Respondent's collective-bargaining agreement with the Union.
I credit Peoples' testimony. Although I find that Barton was generally
unreliable in his testimony (see fn. 10, infra ), he admitted that Peoples asked
to join the Union. According to Barton, he told Peoples that "I'd just let
things rock on like it was for a while." McGuire denied that Peoples asked
him about joining the Union before September 22. McGuire did admit that
when he worked for Hayes Aircraft, he referred to his identification number
as a badge. In light of Barton's admission. I am convinced that Peoples spoke
to him and McGuire about joining the Union.
"' David Barton admitted that Peoples asked to sign a dues checkoff on
September 22, but Barton contended that Peoples wanted to sign a dues
checkoff for C & G but not for Jakemi. Barton testified that he fired Peoples
because Peoples refused to work for the nonunion company, Jakemi Coal. I do
not credit Barton's testimony to the extent it conflicts with the testimony of
Peoples and Hicks. When Barton was originally questioned by the General
Counsel under Rule 611(c), he testified that he fired Peoples because Peoples
was one of the two employees that had not joined the Union
on September 1.'
2. McGuire concluded that the employees had no objec-
tion to his forming a nonunion company. With that
understanding he ordered the new equipment. The equip-
ment arrived at the mine around September 15 or 16.
3. On September 15, Joel Peoples asked his supervisor,
David Barton, to ask Mr. McGuire if he could join the
Union. Several days later Barton told Peoples that
"McGuire said that he started out with four employees [in
the] union and that's the way he was going to leave it and
that's just the way it was going to be." Peoples then asked
McGuire why he couldn't join the Union. McGuire replied
that that was the way he started out and that was the way he
was going to leave it, and if Peoples was going to cause
trouble he could get his "badge and go home." Peoples
testified that his conversation with McGuire occurred on the
day before his September 22 discharge.
4. Joel Peoples was told that he was being transferred to
the nonunion company, Jakemi Coal. On September 22,
Peoples objected to his transfer and asked Barton and
McGuire if he could sign a dues-checkoff card and join the
Union. Peoples' testimony regarding the September 22
incident was supported by the testimony of former union
committeman Roy Lee Hicks. Hicks testified that Peoples
objected to McGuire and Barton that he did not want to
transfer to the nonunion company. Hicks recalled Barton
saying that Peoples was going into the nonunion company
and that Peoples could not sign a C & G dues checkoff
because of his transfer. Hicks advised Peoples that he could
sign a dues checkoff and a grievance. Barton objected, saying
he did not want any grievance papers because Peoples did
not belong to the Union. Barton then said to Peoples,
"[Y]ou're fired from Jakemi Coal Company and you're laid
off from C & G Coal Company.""
5. On the Monday following Peoples' discharge Respon-
dent's employees struck over Respondent's refusal to permit
its employees that were not union members to sign a dues
checkoff. On Tuesday, September 26, Respondent agreed to
permit its employees to sign dues checkoffs. By that action
Respondent abandoned its efforts to form a nonunion
company.
6. Pursuant to the Union's demand for immediate arbitra-
tion under the contract, Joel Peoples was ordered reinstated
on October 5, 1978, on the ground that Respondent did not
refused to do any work for "a couple of days--well, I'll say one day." When
asked how Peoples refused to work, Barton testified. "Well, I believe he went
home. I don't remember .... I'm not for sure he went home, but he refused
to do the work." However, when he was called by Respondent, Barton
testified that during a conversation on September 22, Peoples said he would
not work for Jakemi Coal, at which time Barton said, "If you're not going to
work for Jakemi, you're fired in Jakemi and you're already laid off in C & G.
Harvey McGuire testified that he missed most of the September 22
conversation in which Peoples was fired. McGuire testified that after he
walked up to the conversation, Peoples said that he was not coming in early
and he was not working for Jakemi Coal. To that Barton replied, "Well, Joel,
if you're not coming in, we don't need you; you're laid off in C & G Coal
Company and I'm firing you in Jakemi Coal Company." In view of the
inconsistencies in Barton's testimony and the inconsistency between Barton
and McGuire regarding the comment by Peoples which triggered his
discharge, I am convinced that the testimony of Peoples and Hicks more
accurately reflects what actually occurred on September 22. I note however,
that Barton's testimony reveals an admission that Peoples was fired because
he refused to work for the nonunion company.
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C & G COAL CORP.
follow the procedural requirements of the contract in
discharging him. When Peoples returned to work on
October 6, he was warned by Harvey McGuire that he had
messed up and that he had better stay out of McGuire's
way."
7. Although David Barton admitted that before October
6, 1978, Respondent had no written warning system, he
awarded Joel Peoples two written warnings on October II1.
In view of the timing of the reprimands, McGuire's threat to
Peoples on October 6, and the disparate nature': of Respon-
dent's action, I am convinced that Respondent was substan-
tially motivated by Peoples' prior union activity.
8. Respondent discharged Peoples again on October 14,
because he allegedly damaged a rock truck. According to the
testimony of David Barton, Peoples denied that he damaged
the truck. Barton then asked several employees on the night
and day shifts if they had damaged the truck or it they knew
who had damaged the truck. All those employees denied
responsibility and knowledge.
The rock truck was driven on the night shift of October
13. Roy Lee Hicks testified that he saw the night shift
operator almost turn the truck over on October 13, and that
when he was questioned by Barton about the damage to the
truck, he told Barton about that incident.
On the basis of his investigation Barton decided to accept
all the denials except Peoples'.' He determined that when
Peoples moved the truck for servicing on the morning of
October 14, he damaged the truck's door. Barton testified
that for that reason, he discharged Peoples. Barton admitted
that other employees have damaged vehicles since Peoples'
discharge and none of those employees has been dis-
charged."
B. The 8(a)(l) Allegation
Harvey McGuire admitted telling Peoples on October 6
that "he'd caused all the trouble that he needed to cause and
I just wanted him to do his job and just go on and not cause
anymore trouble." In view of my finding that the "trouble"
McGuire was referring to was Peoples' protected union
activity, I find that McGuire's comments constitute an
implied threat in violation of Section 8(a)(1).
Upon the foregoing findings of fact and upon the entire
record, I hereby make the following:
CONCIUSIONS OF LAW
1. The Respondent, C & G Coal Corporation, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
' McGuire admitted telling Peoples that he'd caused all the trouble that he
needed to cause and McGuire wanted him to do his job and "not cause any
more trouble."
': In showing disparate treatmet. General Counsel met its burden of proof
by showing that no employee had ever received a written reprimand before the
October I I reprimands to Peoples,. Respondent defined that issue on the
ground the "written reprimand" was instituted fiollowing the October 5
comments by arbitrator Jack Clarke that Respondent should "keep records of
everything." I find that assertion alone does not satisfy Respondent's burden
of overcoming General Counsel's proof. Obviousl~ Respondent could have
maintained a record through a simple written notation of the incidents
without engaging in a formal disciplinary action. Moreover. Respondent
2. United Mine Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening its employee that he should cause no
more trouble by insisting on joining the Union. Respondent
has engaged in unfair practices within the meaning of
Section 8(a)(1) of the Act.
4. By discharging its employee Joel Peoples on September
22 and on October 14, and by issuing written reprimands to
Peoples on October II, 1978, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEIDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully discharged
Joel Peoples, I shall recommend that Respondent be ordered
to offer him immediate and full 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. I shall further recommend that
Respondent be ordered to make Peoples whole for any loss
of earnings he may have suffered as a result of the
discrimination against him. Backpay shall be computed with
interest as prescribed in F W. Woolworth Company. 90
NLRB 289 (1950), and Florida Steel Corporation. 231
NLRB 651 (1977). '
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended.
ORDER'
The Respondent, C & G Coal Corporation, Hamilton,
Alabama, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees not to cause trouble by
insisting on joining the union.
(b) Discharging its employees because of their union
activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
failed to demonstrate that under its normal practice Peoples would have
received any discipline whatsoever fir the October I I incidents.
"Barton offered no explanation of his determination that only Peoples lied.
" Respondent did not explain why it did not treat other employees in the
same fashion it treated Peoples
See, generally. Lsi. Plumnhbing and Hteating Co., 138 NLRB 716 (1962).
In the event no exceptions are filed as provided b Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulatins. be adopted by the Board and become its
findings, conclusions and Order. and all objections thereto shall be deemed
waived for all purposes
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer Joel Peoples immediate and full 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. Make whole Joel
Peoples for any loss of earnings suffered as a result of the
discrimination against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, made available to the
Board or its agents. for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
In the esent that this Order is enforced hy a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Lahr Relationls Board" shall read "P'ostcl Pursuant to a Judgment
(c) Post at its Hamilton, Alabama, mine copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 10,
shall, after being duly signed by Respondent's authorized
representative, be posted by it immediately upon receipt
thereof and be maintained for a period of 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced or covered by any other
material.
(d) Notify the Regional Director for Region 10, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1330