C. M. Brier Corp.

National Labor Relations Board - Board Decisions

May 12, 1993

310 N.L.R.B. 1362 (N.L.R.B. 1993)

1362
310 NLRB No. 225
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In the first sentence of sec. III,D, par. 26, the judge mistakenly
referred to mine 32. The correct reference is to mine 2.
2 The General Counsel excepts to the judge’s failure to conform
the Conclusions of Law, recommended Order, and notice with his
findings. We shall correct the judge’s inadvertent errors and amend
the Conclusions of Law, recommended Order, and notice accord-
ingly.
3 The Respondent incorrectly asserts that the only seam about
which Copley testified was at 6 to 7 feet from the roof, which
Copley discovered in October. Contrary to the Respondent’s conten-
tion, Copley’s testimony that is quoted in the text above refers to
what he discovered at a different location in mine 1 during his Sep-
tember inspection. Copley used ‘‘streak’’ and ‘‘seam’’ interchange-
ably during his testimony. The record, however, including Dorsey’s
testimony, as well as Copley’s testimony as a whole, supports the
finding that mine 1 in mid-September contained a 1- to 2-foot coal
‘‘seam’’ at the 4-foot zone or less.
C. M. Brier Corporation and United Mine Workers
of America. Cases 9–CA–27376 and 9–RC–
15642
May 12, 1993
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On October 21, 1991, Administrative Law Judge
George F. McInerny issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed limited exceptions and a
supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified and set forth in full below.2
The judge found, and we agree, that the General
Counsel established a prima facie case that the em-
ployees’ union activities were a motivating factor in
the Respondent’s March 1990 decision to close mine
2 and lay off some of its employees. Managers and su-
pervisors of the Respondent, including its owners, re-
peatedly threatened employees that the mine would be
closed down if the employees persisted in their union
activities and/or if the Union was voted in. In addition,
the Respondent engaged in other acts of intimidation,
including the interrogation and the surveillance of em-
ployees. The Respondent, through its foreman, stated
that mine 2 employees were laid off ‘‘for . . . Union
reasons, trying to scare the rest of the men from voting
for it.’’ Finally, the timing of the mine closure and the
layoff of those employees in the ‘‘hoot owl’’ shift, in
which the union activities were centered, lend further
support to the General Counsel’s case.
A prima facie case having been established, the bur-
den then shifts to the Respondent to show that it would
have closed the mine even in the absence of the union
activities of the employees. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). The judge found, and
again we agree, that the Respondent failed to sustain
its burden. In so finding, the judge relied particularly
on the fact that, on learning of a problem with the roof
of mine 2, the Respondent closed the mine ‘‘casually
and precipitously, even before the mine was inspected
by the NMSHA’’ (the National Mine Safety and
Health Administration). The judge contrasted the Re-
spondent’s conduct in this respect with its reaction to
what the judge termed ‘‘a similar situation’’ at mine
1 later in 1990, when the Respondent did not imme-
diately close the mine but rather requested an inspec-
tion by the NMSHA.
In its exceptions, the Respondent contends, inter
alia, that the judge erred in finding that the situations
in the two mines were ‘‘similar.’’ According to the
Respondent, the roof problem at mine 2 was unprece-
dented and precluded further operations. The Respond-
ent contends that the General Counsel’s expert witness,
inspector Mark Copley of the NMSHA, testified that
there were ‘‘coal streaks’’ in mine 1, and argues that
such ‘‘streaks’’ did not create the same safety hazard
as the more serious ‘‘coal rider seam’’ found in mine
2. The Respondent also claims that the only seam in
mine 1 about which Copley testified was 6 to 7 feet
above the roof.
We find no merit in the Respondent’s contentions.
The record as a whole supports the judge’s finding that
‘‘similar’’ roof problems existed at the two mines dur-
ing 1990, even if the extent of the safety hazards were
not identical. Roof bolter operator Tracey Lane Dorsey
testified that in mid-September, subsequent to the clo-
sure of mine 2, he drilled test holes in mine 1 and
found that a 1- to 2-foot coal seam existed about 2 to
3 feet above the roof. Copley testified that the Re-
spondent’s vice president Clevinger telephoned him at
that time concerning mine 1 and said, ‘‘I’ve run into
some bad top over here. I want you to bring your
scope and we want to take a look at it. We’ve got to
do something.’’ Copley inspected the mine, and found
that the top was broken up and water was leaking in.
He recommended measures which would remedy a sit-
uation where ‘‘a coal rider seam is encountered at the
four foot zone or less.’’3
When Copley inspected mine 2, after the closing, he
found that the roof looked ‘‘pretty good,’’ and that,
1363C. M. BRIER CORP.
4 The Respondent’s argument that Copley’s inspection was not
thorough and that Copley ‘‘did not have adequate information to
form an ‘intelligent,’ meaningful, or persuasive opinion concerning
the safety of the roof’’ is unavailing. Rather, it serves as a tacit ad-
mission that the Respondent made its decision to close mine 2 with-
out the benefit of a ‘‘meaningful’’ inspection, as there is no evidence
that the Respondent based its decision on information unavailable to
Copley. The Respondent’s further contention that Copley did not
know about the existence in mine 2 of fire clay, which was revealed
by geologist Gregory Smith’s subsequent inspection in July 1990, is
unpersuasive, since the Respondent makes no claim that it knew of
the existence of fire clay in the area at the time of its decision to
close.
5 Copley’s testimony contradicts the Respondent’s contention that
the undisputed industry practice was not to mine in areas with rider
seams closer than 4 feet. Moreover, the Respondent, as noted above,
in fact continued mining in mine 1 after following Copley’s rec-
ommendations as to extra roof control measures to be taken when
a rider seam in the 4-foot zone or less was encountered.
based on his inspection and what Fitzwater reported to
him, the roof problem could be controlled.4 The coal
seam was running at one point in mine 2 from about
2 to 3 feet above the roof.5 At the conclusion of his
inspection, Copley recommended that he look at the
roof through a stratoscope, but Clevinger declined,
stating ‘‘[W]e’ve decided to shut it down, so I don’t
see any use in it now.’’
The Respondent reacted to the roof problem at mine
1 by requesting an inspection with a stratoscope by a
representative of the NMSHA and employing extra
measures to contain the bad top problem. By contrast,
the Respondent reacted to a substantially similar roof
problem at mine 2 by abruptly shutting it down with-
out the benefit of any expert opinions and even declin-
ing roof control specialist Copley’s offer of an exam-
ination with a stratoscope. In the circumstances, we
agree with the judge that the Respondent acted incon-
sistently in two similar situations and that it has not
satisfied its burden of showing that it would have
closed, without further inspection, mine 2 for safety
reasons in the absence of its employees’ union activi-
ties.
AMENDED CONCLUSIONS OF LAW
Insert the following as conclusions of Law and re-
number 6, 7, and 8 the subsequent conclusions accord-
ingly:
‘‘6. By telling employees that it will not sign a
United Mine Workers contract, the Respondent has
violated Section 8(a)(1) of the Act.
‘‘7. By telling employees that its decision to obtain
equipment necessary to continue mining operations de-
pends on the employees’ actions regarding union rep-
resentation, the Respondent has violated Section
8(a)(1) of the Act.
‘‘8. By ordering employees to stop talking about the
Union while they were in its mine, the Respondent has
violated Section 8(a)(1) of the Act.
‘‘9. By threatening employees with discharge be-
cause of their union activities, the Respondent has vio-
lated Section 8(a)(1) of the Act.’’
ORDER
The National Labor Relations Board orders that the
Respondent, C. M. Brier Corporation, Dixie, West
Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with closure of its coal
mines in Dixie, West Virginia, if they choose union
representation.
(b) interrogating employees about their union affili-
ations and activities.
(c) Giving employees the impression that their union
activities are under surveillance.
(d) Telling employees that it will not sign a United
Mine Workers contract.
(e) Telling employees that its decision to obtain
equipment necessary to continue mining operations de-
pends on the employees’ actions regarding union rep-
resentation.
(f) Ordering employees to stop talking about the
Union while they are in its mine.
(g) Threatening employees with discharge because
of their union activities.
(h) Closing its mines, and laying off, first tempo-
rarily, and then permanently, its employees because of
their union activities.
(i) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer the following named employees immediate
and full reinstatement to their former positions or, if
those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed. If no
positions are available for these employees, on account
of the cancellation of a contract or contracts between
the Respondent and Bright Coal Company, or its suc-
cessor, then offer to reinstate such employees to sub-
stantially equivalent positions, if and when the Re-
spondent, or its officers, agents, successors, or assigns,
resume the same or substantially equivalent operations,
in the State of West Virginia, or elsewhere.
The employees in question are:
Mark Acord Charles Hendricks
Charles Alley Jim Hill
Herb Backus Gary Holcomb
Larry Boggs Larry Holcomb
Brian Brown Mike Humphrey
Jimmy Duffield John Kuntz
Danny Grose Mike Lanham
1364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
Robert Grose Eddie Long
Terry Gross James Nicholas
Terry Hamrick Tony Taylor
Johnny Hanshaw Scott Smith
Haymond Hanshaw
(b) Make whole the above-named employees for
loss of earnings and other benefits suffered by them by
reason of the discrimination against them, in the man-
ner set forth in the remedy section of the judge’s deci-
sion.
(c) Remove from its files any reference to the un-
lawful layoffs and notify the employees in writing that
this has been done and that the layoffs will not be used
against them in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its business offices, and any location
where it is currently engaged in the mining of coal
copies of the attached notice marked ‘‘Appendix.’’6
Copies of the notice, on forms provided by the Re-
gional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 9 shall, within 14 days of this Decision, Order,
and Direction, open and count the challenged ballots.
The Regional Director shall then serve on the parties
a revised tally of ballots and issue the appropriate cer-
tification.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees with closure of
our coal mine operations if they choose union rep-
resentation.
WE WILL NOT interrogate our employees about their
union membership or activities.
WE WILL NOT give our employees the impression
that their union activities are under surveillance.
WE WILL NOT tell our employees that we will not
sign a United Mine Workers contract.
WE WILL NOT tell our employees that our decision
to obtain equipment necessary to continue mining op-
erations depends on the employees’ actions regarding
union representation.
WE WILL NOT order our employees to stop talking
about United Mine Workers of America while they are
in our mines.
WE WILL NOT threaten our employees with dis-
charge because of their union activities.
WE WILL NOT close our mines, and lay off, first
temporarily, and then permanently, our employees be-
cause of their union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL offer the following named employees im-
mediate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed.
If no positions are available, WE WILL offer to reinstate
the employees to any equivalent positions available if
we resume the same or substantially equivalent coal
mining operations, in the State of West Virginia, or
elsewhere.
1365C. M. BRIER CORP.
1 Vaughan appeared at this hearing only on July 30, 1990. Grayson
continued to represent the General Counsel throughout the hearing,
and filed the brief.
2 All dates herein are in 1990 unless otherwise specified.
3 The Respondent filed a timely answer denying the commission
of any unfair labor practices.
The employees in question are:
Mark Acord Charles Hendricks
Charles Alley Jim Hill
Herb Backus Gary Holcomb
Larry Boggs Larry Holcomb
Brian Brown Mike Humphrey
Jimmy Duffield John Kuntz
Danny Grose Mike Lanham
Robert Grose Eddie Long
Terry Gross James Nicholas
Terry Hamrick Tony Taylor
Johnny Hanshaw Scott Smith
Haymond Hanshaw
WE WILL make whole the above-named employees
for loss of earnings and other benefits suffered by
them by reason of the discrimination against them,
with interest.
WE WILL notify each of them that we have removed
from our files any reference to his layoff and that the
layoff will not be used against him in any way.
C. M. BRIER CORPORATION
Engred Emerson Vaughan, Esq.1 and Deborah R. Grayson,
Esq., for the General Counsel.
Michael Klupchak, Esq. (Laner, Muchin, Dombrow, Becker,
Levin, and Tominberq, Ltd.), of Chicago, Illinois, for the
Respondent.
Kevin Fagan, Esq., of Charleston, West Virginia, for the
Charging Party.
DECISION AND REPORT ON CHALLENGED
BALLOTS
GEORGE F. MCINERNY, Administrative Law Judge. This
matter originated with the filing of a petition by United Mine
Workers of America (the Union) with the Regional Director
for Region 9 of the National Labor Relations Board (the Re-
gional Director and the Board) on February 14, 1990,2 as
Case 9–RC–15642. In this petition the Union asked for a
Board-conducted election among employees of C. M. Brier
(Brier or Respondent) to determine whether the Union rep-
resented a majority of such employees. On March 16, the
Regional Director approved a stipulation calling for a secret-
ballot election among Brier’s employees on April 5.
Before the election could be held, a charge was filed by
the Union against Brier on March 22 in Case 9–CA–27376
alleging that Brier had discriminated against its employees in
violation of Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act).
At the election on April 5, 21 individuals who appeared
and attempted to vote were challenged by representatives of
Brier on the grounds that these people were not employees
of Brier. The Union filed an objection to conduct by Brier
alleged to influence the outcome of the election.
On April 20, the charge in Case 8–CA–27376 was amend-
ed to include the names of 23 employees allegedly
discriminatorily laid off or discharged by Brier. On May 1,
the Regional Director, on behalf of the General Counsel of
the Board, issued a complaint alleging that Brier had violated
Section 8(a)(1) and (3) of the Act including the discrimina-
tory layoff of 23 of its employees.3 On May 4, the Regional
Director issued a report on the Union’s objection to the elec-
tion and Brier’s challenges to the votes of 21 of the laid-off
employees. The Regional Director recommended that the ob-
jection not be considered, since, in his opinion, it was not
timely filed, recommended to the Board that a hearing be
held to resolve the challenges to 21 employees’ ballots, and
that the matter be consolidated with Case 9–CA–27376 for
hearing.
On June 5, the Board issued an Order directing that Case
9–RC–15642 be consolidated with Case 9–CA–27376, and
that a hearing be held to resolve the issues raised by the
challenges to the ballots of the 21 challenged employees.
By further order of the Regional Director, those matters
came on to be heard before me in Charleston, West Virginia,
on July 30. At that time, however, the Union had filed an-
other charge, alleging that another employer was involved as
a joint employer in these cases. Since the matter had to be
investigated, the General Counsel joined with the Union to
request that the cases be continued until the new allegations
could be properly investigated. Accordingly, and over the
strenuous objections of Brier’s counsel, I granted the motion
to continue and adjourned the matter sine die.
Upon investigation, it turned out that there was no joint
employer factor here. The cases were rescheduled, and were
heard at Charleston on October 23, 24, and 25.
At this hearing all parties were represented by counsel,
had the opportunity to present testimony and documentary
evidence, to examine and cross-examine witnesses, and to
argue orally. Following the close of the hearing the Respond-
ent and the General Counsel filed briefs, which have been
carefully considered.
Based on the entire record, including my observations of
the witnesses, and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, C. M. Brier Corporation, is a corporation
which at all times material had an office and place of busi-
ness in or near Dixie, West Virginia, where it was engaged
in the business of mining coal. In the course and conduct of
its business, Respondent provided services valued in excess
of $50,000 for nonretail enterprises located in the State of
West Virginia, each of which, in turn, sells and ships goods
and material valued in excess of $50,000 directly to points
outside the State of West Virginia.
The complaint alleges, the answer admits, and I find that
the Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
1366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Brier succeeded another contract mining company, which had,
according to testimony here, gone bankrupt.
5 Also known as Grassy Fork Complex, Barbara Lynn mines 2 and
3.
6 Mine 1 was involved in the representation case, but only partly
concerned in the unfair labor practice portion of the case. There is
no evidence of the extent of mine 1, except that it was not as pro-
ductive as mine 2.
7 The pillars were composed of coal and rock, the amounts of each
depending on the thickenss of the coal seam at each pillar. The pil-
lars appear on the maps submitted in evidence here to be about 20-
feet square.
8 If they had continued on, they, the would have come out in a
valley, or hollow, outside of the mountain.
9 Drilling of test holes was customary mine safety practice.
10 This testimony was verified by Larry Holcomb, another bolter
on the first shift, who was sent by Gunning to test drill in entries
3, 4, and 5. Holcomb encountered the same 31 to 36 inches of rock,
then into ‘‘coal or something soft.’’
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the United Mine Workers of America is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Brier was engaged as a contract miner of coal since Au-
gust 19894 at two adjacent mines in or near Dixie, Clay
County, West Virginia. The entrances to these mines, known
as Brier 1 and 25 were at ground level and they were driven
horizontally into the mountains at right angles to each other.
At the time of this hearing mine 2 extended underground
through the mountain for about one mile.6
The owner of the property under which these mines were
located, or at least the owner of mineral rights to the prop-
erty, was Bright Coal Company, later Bright Coal Group
Inc., and then BGI Division of a company called NERCO,
all of which entities will be referred to as Bright, or Bright
Coal.
Bright Coal contracted with Brier, and its predecessor, Hill
Enterprises, to come in as what was described as an ‘‘inde-
pendent contractor’’ to mine coal in accordance with a ‘‘min-
ing plan’’ developed by Bright Coal engineers, and using
mechanical equipment owned by Bright. Brier was to have
full responsibility, within the limits of the mining plan, to
purchase tools, obtain licenses, observe safety and ecological
standards, hire, pay, provide insurance, and have total control
of employees, and to mine the coal at a fixed per ton, deliv-
ered to the mine entrance.
Mine 2 was composed of five passageways, or entries,
each 20 feet wide, through which passed incoming fresh air
and outgoing exhaust air, a series of belts to carry mine coal
out to the entrance, and passages for men and equipment to
reach the mining area, and return. After each 20 feet, pillars
were left as supports, and cross-passages, also 20 feet wide,
were cut between the entries again leaving pillars at each 20
foot interval.7
The width of the mine, then, would appear to be about 180
feet, 100 feet of passageways and 80 feet of pillars, all of
this extending for a mile in an easterly direction from the en-
trance. The mining plan prepared by Bright Coal’s engineers
projected a continuing drive to the east into an area con-
taining, according to engineering estimates, a million tons of
recoverable coal. Gary Criste, one of Bright’ engineers from
1986 to 1990, estimated that the extraction of these ‘‘re-
serves’’ would have taken 4 to 5 years.
Unfortunately, these bright prospects were not to be real-
ized. On November 27, 1989, the easterly drive was halted
by a formation of sandstone, referred to as ‘‘fault,’’ a hard
rock deposited, in the view of Respondent’s expert witness,
Gregory Smith, by a street which some time in the past had
cut through the coal deposits and left silt, which, in turn, had
hardened, over the ages, into this sandstone fault in the Brier
2 mine. This, of course, required some revision to the exist-
ing mining plan, so Paul Clevinger, Respondent’s vice presi-
dent, and a 50-percent owner of Brier, contacted Tim Ross,
director of operations for Bright Coal. Ross decided that
Brier would turn the mining operation to the north and drive
in that direction, probing to the east as they proceeded, to
see if a way around the fault could be found. Clevinger stat-
ed that as they advanced to the north the fault continued on
the east, eventually cutting into the entries on the east to the
point that the air intake entry was affected. In addition, they
arrived at a place where there was only a hundred feet or
so of cover and the coal began to be mixed with dirt.8
About January 30 Clevinger checked with Ross again.
Ross told him to ‘‘pillar back,’’ a process whereby some of
the coal seam in the pillars, left as they mined through,
would be recovered as they moved back, abandoning the
mine as they went. After this was accomplished, they turned
and began to drive south, again alongside the fault, to see
if they could either find a way around the fault, or failing
that, according to Clevinger, to come out on the side of the
mountain, then reenter beyond the fault to reach the reserves,
and install a system of belts to move the coal from the re-
serves out one opening, back in the other and thence through
the existing entries of mine 2 to the original entrance where
the coal would be cleaned and trucked out.
On the night of March 1 and 2, John Kuntz, a maintenance
employee on the night shift, while in mine 2, was drilling
test holes in the roof preparatory to bolting the roof (or top)
to stabilize it and ensure safe working conditions for the
miners working below.9 The first holes drilled in the roof of
the farthest entry to the left were satisfactory, but at three
other entries Runtz encountered only 18 inches of rock, then
ran into coal which extended as far as his drill penetrated,
6 feet, into the roof. This created a problem because coal,
being soft, does not provide a firm anchorage for the roof
bolts. Kuntz reported this to Fine Foreman Richard
Fitzwater.
Later in the morning, on March 2, when the first shift ar-
rived at the mine face, employee James E. Nichols reported
that his supervisor, Mike Gunning, received a telephone call,
then told the bolting crew to go and test entries 1, 2, and
3. Nichols reported 31 to 36 inches of ‘‘good top’’ coal.10
After this the crew was ordered out. When they reached the
outside, Clevinger told them he had to contact a mine inspec-
tor and get the top checked out. The employees were sent
home.
1367C. M. BRIER CORP.
11 This shift performed maintenance duties in both mines, includ-
ing the difficult and lengthy task of moving the belts which carried
the coal from the mine face out to the entrance.
12 All dates herein are in 1990 unless otherwise specified.
13 Clevinger handled the actual mine operations for Brier, while
Don Maynard handled the paperwork and administrative matters.
14 Testimony of Robert Grose, Arid Hanshaw, and James E. Nich-
ols. Junior L. Evans, and employee at mine 1, talked about a meet-
ing on January 19, at which Clevinger said that he could not talk
about shutting down the mine, because of ‘‘labor charges’’ but that
he got $13 a ton for coal, and did the men think he would stay there
(after the Union came in).
15 This testimony was corroborated by employees Junior Evans
and Tracey Lane Dorsey.
16 Before that time Brown had signed a card and attended union
meetings. When he came back to work he wore union stickers on
his dinner bucket and on his hat, and had handed out union stickers
to other employees.
17 There is ample evidence that most union supporters had union
stickers posted on their hats, dinner buckets, or pickup trucks, or all
three.
18 Clevinger admitted this, but did not say that he would sign an-
other type of contract with the Union.
B. The Union Organizational Campaign
In the meantime, about January 15, according to Jimmy L.
Duffield, an electrician and general laborer on the second
shift (about 3 to 11 p.m.) in mine 2, ‘‘quite a few’’ of the
employees were upset with the Company, and Duffield, who
was a member of the United Mine Workers Union, contacted
the Union and a meeting was arranged for January 21.
Twelve or thirteen people showed up for the meeting (two
of these were employed at the cleaning and preparation facil-
ity, or tipple, located outside the mine entrance and were not
employed by Brier). At this meeting, the Brier employees, all
of whom were from mine 2 and the late night, or ‘‘Hoot
Owl’’ shift11 signed cards and subsequently wore UMW or
‘‘Vote yes’’ stickers on their lunch pails or on their hard
hats.
On January 2212, the Union sent Brier a letter notifying
the Company of the Union’s organizing campaign. A petition
for an election among Brier’s production and maintenance
employees at Dixie, West Virginia, was filed on February 14
in Case 9–RC–15642. A stipulated election agreement was
executed by the parties on March 5 and 6, approved by the
Regional Director on March 16 and election was set for
April 5. As I have noted above, an objection and challenges
were filed by the Union, some of which challenges are the
subject matter of this present decision.
C. The Company’s Reaction
1. Paul Clevinger
Brier’s reaction to the union campaign was less than en-
thusiastic. Much of the Company’s early response to the
union activity was conducted by Paul Clevinger.13 Jimmy
Duffield testified that Clevinger and Richard Fitzwater, the
mine foreman and chief electrician met with a group of sec-
ond-shift employees before the first union meeting of Janu-
ary 21 in mine 2. Clevinger told these employees that he had
heard rumors that the men were talking about signing cards
and getting union representation. He told the employees that
they had a ‘‘good thing going there’’ and that they did not
want or need a union. Other employees echoed Duffield’s
description of this meeting, the substance of which was re-
peated with other groups.14
After the union meetings had begun, on February 20,
Duffield described a meeting for a larger group of employees
at which some man with ‘‘Virginia tags’’ on his car showed
movies about strikes. Clevinger gave a talk about everything
going well and how they did not need a union. At one point
Clevinger ‘‘grabbed’’ a UMW contract, said there was ‘‘no
way in H.E.L.L.’’ that he was going to ‘‘sign that thing,’’
then slamed the contract down on the table in front of him.
At this, the man from Virginia ‘‘jumped up’’ and said that
Clevinger ‘‘didn’t mean that he wouldn’t sign a contract if
you got a Union,’’ but ‘‘he wouldn’t sign that.’’ Clevinger
did not comment on this.15
Brian Brown, a bolter on the first shift at mine 2 was in-
jured in December 1989. He returned to work on light duty
on the night (Hoot Owl) shift on February 26.16 About a
week after mine 2 had been shut down Brown returned to
the office and asked Clevinger about the conditions in the
mine. Clevinger said that Bright Coal was in the process of
deciding ‘‘up to what happened to the Union whether or not
Bright would’’ pay for equipment to drive through the fault.
The complaint in this matter was amended at the hearing
to include an additional allegation of 8(a)(1) violations of the
Act that Clevinger conveyed to employees the impression
that their union activities were under surveillance by Brier,
and that he interrogated employees about their union activi-
ties.
At a meeting on January 19 with second-shift employees,
Clevinger was quoted by Jimmy Duffield as saying that he
had heard rumors that employees were talking about signing
union cards. Junior Evans reported that at a meeting, also on
January 19, Clevinger said he knew there was a union meet-
ing on Sunday (January 21). At another time Evans said
Clevinger told him that he had heard there were enough
cards signed, then asked what Evans had heard. Bernard
Backus testified that he and another employee, Mark Acord,
were approached by Clevinger on January 19. Clevinger said
to them that he could not ask them if they were going (to
the union meeting) but he would like to know. Acord denied
that he was going, and Backus said, ‘‘I probably told him
that, too.’’
Clevinger denied that he had told employees that the mine
would close if the Union came in, and he denied that he told
employees that he knew who supported the Union and who
did not.17 His memory on other allegations was uncertain. He
did not recall that he told Evans that enough cards were
signed, or that he told employees he knew about a union
meeting, or that the decision to obtain equipment necessary
to continue mining depended on the employees’ actions re-
garding the Union.
Clevinger is no fool. He is smart, alert, and articulate. His
hesitancy and claimed lack of memory persuaded me that it
was not his memory, but his candor, which was at fault. The
testimony of the several employees who talked of incidents
in which Clevinger was involved I find to be credible, and
I find that Brier has violated Section 8(a)(1) of the Act by
impliedly threatening to close the mines if the employees se-
lected the Union as their representative; by telling employees
that he would not sign a UMW contract;18 by telling employ-
ees that Brier’s decision to obtain equipment necessary to
1368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Maynard and Clevinger lived in Kentucky and returned there on
weekends. I infer and find that these remarks were intended to warn
employees that the Company would close down if the Union came
in.
20 Described by Duffield as a clean place, ‘‘not all junked up’’
where the men could keep their dinner buckets, and set down to eat
dinner.
21 In fact, when mine 2 shut down, the section foremen, as well
as the rank-and-file employees, were laid off.
22 This last was not explained. We do not know whether Taylor
was threatening to suspend employees, as he had Scott Smith, or
whether he was proposing a fist fight with those who violated his
rules.
continue mining operations depended on its employees’ ac-
tions regarding union representation; by giving employees
the impression that their union activities were under surveil-
lance; and by interrogating its employees about union activi-
ties.
2. Don Maynard
Sometime after the first union meeting on January 21, Jun-
ior Evans testified that he had gone outside the mine to get
some tools, and was talking with Maynard in front of the of-
fice. Maynard asked Evans if he knew where Maynard could
get some tires and wheels for a box trailer which was on the
property. Evans said no, and asked why. Maynard replied
that depending on what came out of the ‘‘Union deal’’ the
Company might want to ‘‘load up and move out.’’
In other incidents mentioned in an amendment to the com-
plaint allowed at the hearing Jimmy Duffield stated that
about a month before the union campaign started, Maynard
said to Duffield and two of the Grose brothers, Robert and
Tony, that he had heard some rumors about union activity.
He told the employees that if they went Union, Clevinger
would be ‘‘back to Kentucky.’’19
A similar remark was reported by Michael Lanham, who
testified that, in December, he, Terry Hamrick, and perhaps
other employees, were in the ‘‘light house,’’ or lamp house,
when the subject of the Union was brought up by one of the
employees. Maynard stated that he had worked for NERCO
before, and that they ‘‘wouldn’t have no Union in there. Be-
fore they went Union they’d go back to Kentucky.’’
In response to these allegations, Maynard, like Clevinger
had only a vague memory of specific incidents, but he did
deny that he had threatened to return to Kentucky, or that
he wanted tires for the box trailer to ready the vehicle to pull
out of the area.
Again, I found the employees to be credible witnesses, and
Maynard’s partial denials of wrongdoing did not impress me.
Thus, I find that Respondent, through Maynard’s statements
to employees had threatened, I think directly, rather than
impliedly, as alleged in the complaint, to close down Brier’s
operations if the employees chose the Union, and this vio-
lated Section 8(a)(1) of the Act.
3. Jerry Taylor
Jerry Robert Taylor, the section foreman on the second
shift at mine 2, was named in the complaint as having made
several statements to employees threatening, or implying,
that the mine would be shut down if the men chose the
Union as their representative.
Jimmy Duffield, whom I have found to be a credible wit-
ness testified that on February 6 he and a group of employ-
ees were eating dinner in a ‘‘dinner hole’’20 in mine 2. Tay-
lor said something about signing cards, then said ‘‘all you
boys are going to do put us all out of jobs21—. They are
going to shut this mine down. There is ways of doing it
legal. They don’t have to worry about this Union—we’ll shut
her down if you go Union.’’ This testimony was corrobo-
rated by Mike Lanham.
A few days later, Duffield recalled, just he and Taylor
were eating dinner, when Taylor said that ‘‘we are going to
shut [this] Mine down and none of us will be working.’’
After another few days, Duffield testified that he heard
Taylor and Charlie Alley in an argument about the Union.
Alley mentioned a Supreme Court ruling against textile fac-
tories and said they could not shut the mines down because
of a union. Taylor kept telling Alley that there were legal
ways of doing it. Duffield described this exchange as a
‘‘pretty hard argument.’’ In his testimony, Alley corroborated
what Duffield had said.
On February 14, while the men were ‘‘pillaring back’’
from the northward section of the mine Duffield and two
other employees were setting timbers. Taylor came to where
they were working and said they were not setting the timbers
right. He then told Duffield that he was nothing but a trouble
maker for starting this ‘‘Union stuff.’’ Duffield asked if they
were going to fire him and Taylor said yes, that Duffield had
better keep his nose clean, and that the word was out to fire
him. Taylor then added that when Duffield returned the next
day he wanted ‘‘the Union sticker off your hat.’’ About an
hour later Taylor came back and told Duffield that he ‘‘was
just joking a while ago. You just forget about what I said
a while ago.’’
Another incident involving Taylor occurred on February
19 when the second shift was on the way into the mine
riding in a so-called man trip vehicle. They had stopped
about half way between the entrance and the mine face,
when Taylor said that he had sent Scott Smith home for 3
days for cursing him, and that he was not going to have any-
one cursing him or talking back to him. He then went on to
say ‘‘While we’re on the subject, this Union talk that you
all are talking, I want it stopped underground as of now—
if it’s not stopped I will stop it if I have to take you out.’’22
Both Alley and Lanham corroborated this testimony.
Brian Brown testified that about February 27 he overheard
employees at the dinner hole say that the Company could not
shut the mine down because of the Union. Taylor disagreed
and said that they could shut down. Later Taylor told Brown
that Brier could close the mine and that the ‘‘guys had better
open their eyes up because Briers could—Paul and Don
could go either way.’’
Taylor admitted in his testimony that he had told one em-
ployee that he thought the mine would close down if the
Union came in, but denied that Clevinger or Maynard ever
told him that. He also admitted that he did say, on the man
trip, that there was a lot of union talk and that he had asked
the men to wait until Taylor did not recall the conversation
in which he was said to have called Duffield a trouble
maker. Nor did he recall saying that the mine was shut down
because of the Union.
1369C. M. BRIER CORP.
23 I do agree, however, with the General Counsel that there was
rather too much similarity in the disclaimers of these supervisor wit-
nesses to be entirely coincidental.
24 I do not believe that Taylor’s later disclaimer, on the grounds
that he was ‘‘only joking’’ is sufficient to erase the unlawful effect
of his prior remarks; Passavant Memorial Area Hospital, 237 NLRB
138 (1978).
25 Nichols’s name is spelled as it appears in the record. He was
identified in the original complaint as ‘‘Nicholas,’’ and in the Gen-
eral Counsel’s brief as ‘‘Nickles.’’
26 Shawkey was identified in the original complaint as ‘‘Shankey.’’
The complaint was amended to correct this.
27 Moore was alleged in the complaint to be a supervisor, but this
allegation was specifically denied in the Respondent’s answer. No
evidence was introduced on Moore’s supervisory status. In these cir-
cumstances I am constrained to find that the allegation as to Moore’s
status as a supervisor has not been proven, and that he is an em-
ployee within the meaning of the Act.
Taylor, like other line supervisors, Hartley, Gunning, and
Shawkey, testified that he told employees that it was ‘‘only’’
his opinion that the mine would shut down if the Union
came in. I do not agree with the General Counsel that these
witnesses ‘‘appeared to have been carefully coached’’ to
qualify statements about the mine closing as only an expres-
sion of personal opinion.23 But I do think an inference is
permissible that these supervisors were advised either by
management, or by consultants hired by management during
the union organizational campaign, not only that they could
express their ‘‘opinions’’ to employees if asked, but that
there were legal ways to shut down the mine despite what
the Supreme Court might have ruled in other situations.
With this in mind, I credit the testimony of Duffield,
Lanham, Alley, and Brian Brown, and I do not credit Tay-
lor’s denials, or failure to memory, as to the incidents re-
ported by the employee witnesses.
Therefore, I find that by threatening employees that the
mine would be closed if they persisted in union activity, and
by threatening Jimmy Duffield with discharge because of his
union activities,24 and ordering employees to stop talking
about the Union while they were in the mine, all violated
Section 8(a)(1) of the Act.
4. Jeff Hartley
Hartley was a maintenance supervisor on the midnight
shift. Junior Evans testified that after the first union meeting
(January 21) Hartley spoke to him about the Union, saying
that he would like to see it go union, but that Clevinger
would shut it down if it did go union. Hartley himself admit-
ted that several employees, including Robert and Troy Grose,
Tony Taylor, and Gary Ho]comb asked him if the Company
would close if the Union came in. In Hartley’s words, he
said that he ‘‘could not speak for the Company,’’ but for
himself. ‘‘I think they will.’’
In the week following the union meeting, as Robert Grose
testified, Hartley and he were on the man trip riding into the
mine. According to Grose, Hartley asked him if he had
signed a union card. Grose replied that he had and asked
Hartley if he wanted to sign one. Hartley laughed at this,
then told Grose that Clevinger knew about the meeting and
who had gone to it.
As I have credited Evans throughout, I credit him in this
instances. I find that Hartley did say Clevinger could close
the mine if the Union came in, and that this is an additional
violation of Section 8(a)(1) of the Act.
With respect to the conversation with Robert Grose, Hart-
ley claimed not to remember this conversation. I credit
Grose, and find that the conversation did take place as he de-
scribed it. These constitute additional violations of Section
8(a)(1), by creating the impression, from the words of a su-
pervisor, that the union activities of employees were under
surveillance by management, and, in addition, by Hartley’s
interrogation of an employee not identified in the record as
any more than a union card signer. Rossmore House, 269
NLRB 1176 (1984).
5. Mike Gunning
Gunning was the supervisor of the first shift in mine 2.
James E. Nichols25 testified that a day or two before the
March 2 layoff the whole day shift was on board the man
trip going into the mine when Larry Boggs, an employee
said that he believed that if Brier went Union they would
shut down mine 2. Gunning agreed, and said that ‘‘he’’
would shut down if they went Union. Later that day Nichols
and Larry Holcomb were working together with Gunning and
Nichols asked Gunning if he thought ‘‘they’’ would shut
down if the Union came in. Gunning hesitated for a minute
and said that he did not know about the rest of them, ‘‘but
I’m going to look for a job.’’ This conversation was corrobo-
rated by Larry Holcomb.
Gunning did not recall being asked about the Union, but
said he might have been. He did recall, like the other super-
visors, saying that it was his opinion that the mine would
close if the Union came in.
Again I credit the employee witnesses here as being can-
did and open in their testimony. Gunning’s testimony is al-
most identical with other supervisors in forgetting any talk
about the Union, or closing the mine, except for the quali-
fication: ‘‘in my opinion,’’ on a subject with which a super-
visor would be presumed to have some familiarity.
I, therefore, find that in these two instances in late Feb-
ruary, Respondent, through Gunning’s remarks, violated Sec-
tion 8(a)1) of the Act.
6. Charles Shawkey26
Shawkey was a foreman on the day shift at mine 1. On
March 5, after mine 2 had been shut down and the employ-
ees of that mine, together with the ‘‘Hoot Owl’’ shift which
serviced both mines had been laid off, Junior Evans testified
that he asked Shawney in the presence of Mike Moore why
he thought those employees had been laid off. Shawkey said,
‘‘for the Union reasons, trying to scare the rest of the men
from voting for it.’’ Shawkey then asked Evans if he thought
‘‘Paul and them are so dumb that they think those men can’t
vote, if they are laid off?’’ and Evans replied, ‘‘probably.’’
Shawkey admitted he had said that the Company shut
down mine 2 to scare other employees who were for the
Union, but he claimed he said it to Mike Moore, who rode
to work with him. According to Shawkey, Evans must have
heard of the remark from Moore, or someone else.27
Evans was, as I have found, a candid and credible witness.
I believe his story that Shawkey made the remark about Re-
spondent’s motivation in his presence. Shawkey admitted
making the remark to Moore, but not to Evans. It makes lit-
1370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 There was little evidence of union activity at mine 1. Only two
employees from that mine attended the January 21 union meeting,
and only a few employees at mine 1 wore stickers, or otherwise
openly supported the Union.
29 However, Gary Criste, who was in charge of engineering for
Bright Coal from November 1986 to March 1990, testified that there
were about one million tons of coal beyond the fault. He estimated
4 or 5 years work on this reserve. My own estimate, based on the
million-ton figure, and dividing that figure by the 15,000 tons of
coal required to be produced by Brier each month under the contract
between Brier and Bright Coal, would indicate that there would have
been about 5-1/2 years work in mine 2 beyond the fault.
30 There also were references to the purchase of new equipment
for both mines 1 and 2. Clevinger testified that Bright Coal was
going to furnish new mining machines, bolting machines and mine
buggies for the mines, costing about $1.4 million. He admitted that
he had talked to employees about this.
tle difference, since both Evans and Moore are employees,
and the threatening nature of the remark is the same whether
made to an employee on the job, or to an old carpool friend.
I find that Shawkey’s remark constituted an implied threat
that if the mine 1 employees did not heed the fate of their
fellow workers in mine 2, they themselves would suffer the
same fate. This is a further violation of Section 8(a)(1) of
the Act.
D. The Closing of Mine 2
On the basis of the evidence I have heretofore recounted,
and the conclusions I have drawn from that evidence, it ap-
pears that there were a number of threats, direct or implied,
all emanating from, or attributable by inference, to the own-
ers of Respondent, that the mines would close if Respond-
ent’s employees exercised their statutory rights to select the
Union as their collective-bargaining representative.
Under the evidence here it is undisputed that the union ac-
tivity at Respondent’s two mines was centered, and most
widespread, in mine 2 and on the midnight maintenance
shift.28 This could lead to an inference that mine 2 and the
midnight shift were laid off because this would cut out of
the unit the bulk of the union adherents, as well as furnishing
an example for the others, the employees remaining at mine
1.
These facts led the General Counsel to argue that the clos-
ing of mine 2 and the layoff of the midnight shift were based
on Brier’s desires to avoid bargaining with the Union, and
to rid itself of union adherents for the present and for the
future.
If I believe the General Counsel’s witnesses, which I do
for the most part, then I think that she has established a
prima facie case not only that Respondent violated the law,
as noted above, but that it closed the mine 2 in retaliation
for the employees’ disregard of the warnings and threats
made by company officers and supervisors. Wright Line, 251
NLRB 1083 (1980).
Under the Wright Line formulations, then, the burden falls
on Respondent to show that it closed mine 2 not because of
the union activities, but because it would have closed the
mine no matter what its employees had been doing.
In this regard, there are factors which tend to support the
Respondent’s position, and which are undisputed. The fact
that the sandstone fault exists and blocks the eastward drive
of mine 2 toward the million tons of coal reserves ahead is
undisputed. The fact that the alternative drive north to out-
flank the fault failed because the mining plan set up by
Bright Coal for the northward drive was intersected and ef-
fectively blocked by the fault, is likewise undisputed.
But then, as Brier, with the concurrence of Bright Coal,
pillared out of the north extension and began driving south,
there are questions raised in the testimony about how far
they were going to go south, what would happen at the end
of the southern turn; or what they would do if the southern
move did not, like the drive northward, work out success-
fully.
Once the northern operation was called off, about January
30, the reports that employees received from the Company’s
owners and supervisors were divided between two alter-
natives.
According to testimony of Charles Alley, about February
16, a few days after they had pillared back from the northern
area, Richard Fitzwater told him that they were going to
drive through the fault and that once they were through,
there was 10 to 15 years work ahead of them.29
Jamie Nichols recalled that Paul Clevinger told employees
at a January 19 meeting that there was 15 years work ahead
of them. He repeated that at the meeting, and told employees
that the fault was about 150 feet thick, and then they had an-
other 150 feet of 24 inches of coal, then a seam 48 inches
high. He again said that there were 15 years of work there,
and that the future looked good.
There were also references to coal deposits behind where
they were mining and off to the north of mine 2.30 Brian
Brown testified that Don Maynard told him around April 2,
a month after the shutdown, that the Company had lost the
contracts on mine 2, but that there was plenty of coal ‘‘back
of Leatherwood’’ (the tract to the north) and they could mine
that. Larry Holcomb talked of a conversation with Richard
Fitzwater, while they were pillaring back from the northern
extension, in which the latter said that if they could not get
through the fault, and if the turn to the right (south) did not
work, there was a ‘‘block of coal’’ behind them. Holcomb
said that Fitzwater added to this statement the words ‘‘after
we seen what was going to happen.’’ Holcomb asked if he
meant ‘‘about the Union,’’ and Fitzwater said, ‘‘Yes.’’
Clevinger’s testimony on this seemed to imply that there
was coal off to the north of mine 2, but he said that right
Coal did not want Brier mining off to the side of the main
portal area for mines 1 and 2, and besides, the coal was ‘‘too
dirty to mine out there.’’
Another possibility discussed during the winter of 1989–
1990, was that of extending the turn south to reach the sur-
face at what Duffield referred to as a hollow, or a ‘‘big val-
ley.’’ Then they would reenter the mountain at a point where
the reserves lay, beyond the fault, bridge the hollow and
bring the coal from the reserves through mine 2 to the tipple
at the entrance. Fitzwater apparently discussed this possibility
with Duffield.
Clevinger admitted that this possibility was discussed be-
tween himself and Tim Ross, vice president and director of
operations for Bright Coal and that Ross had agreed to let
Brier try to drive south to the surface, then reenter the moun-
tain to reach the reserves, and belt the coal back in through
mine 2.
1371C. M. BRIER CORP.
31 Kuntz was presented as a witness by Respondent. He was not
asked about his union activity but a prior witness, Robert Grose, tes-
tified that Kuntz was one of those employees on the Hoot Owl shift
who wore a union sticker on his hat. Kuntz was working for another
mining company at the time he testified, but there was no indication
or evidence that his testimony was influenced by any connection be-
tween himself and Respondent. I find him to be a credible witness.
32 There was some indication on the afternoon of February 28 that
there might be problems with the roof at the south face. Michael
Lanham testified that he was asked to drill test holes in the roof.
He only drilled two holes because the bolting machine broke down,
but he found about 24 to 30 inches of rock, then coal up to 5 feet.
Lanham reported this to Taylor, his supervisor, who told him that
he would report it to Clevinger and Maynard.
33 Backup’s testimony was corroborated by Holcomb and Jamie
Nichols, first-shift employees.
34 This figure does not include the sale of 10,000 tons of coal
salvaged from the low coal area as they went through. The data for
that coal shows that Bright estimated it would realize $17.12 a ton
for coal delivered FOB at the bargehead in the town of Alloy, on
the Kanawha River about 10 miles south of Dixie. The economics
of the coal business is not made very clear in this case, but adding
the cost figures for royalties, transportation, taxes, and fees to the
$13 figure Clevinger claimed he was paid per ton by Bright, it
would appear that it would cost Bright the $13-per-ton fee to Brier,
then the cost of the preparation plant located at the mine entrance,
and about $11.38 of royalties and additional costs enroute to receive
$28.50 per ton at the bargehead for a profit of somewhere around
$3 a ton. If you amortize the costs of the additional equipment
Bright was buying for Brier, the profit is even less, or nonexistent.
35 A roof plan shows what methods are to be used by the operator
in assuring that the roof is safe. In the case of mine 2 this was to
take the form of a bolted ceiling, with the numbers of bolts, spacing,
Continued
All of that, however, was forestalled by the events of the
nights of March 1–2. On that night John Kuntz,31 a mainte-
nance man on the midnight shift, was bolting test holes in
the roof of the south face of mine 2 in place of another em-
ployee who was on a break. He testified that the farthest
entry (out of five entries) to the left had no problem, but as
he proceeded two entries over, he encountered a hole where,
after drilling 18 inches of rock he encountered nothing but
coal up to 6 feet above the roof line. He notified Fitzwater
about this because, as he put it, he ‘‘didn’t want to send min-
ers under that stuff. It’s unsafe.’’32
Later that morning the first shift reported to work as usual.
After they reached the working face, Supervisor Mike Gun-
ning received a phone call. According to Larry Holcomb,
Gunning told him to back the mining machine out and to get
Bernie Backus and Mark Acord, the bolting crew, to drill test
holes in the roof. Backus testified that they used a 7-foot
drill and encountered, first, 3 feet of rock, then 2 feet of
coal, some softer rock, and coal again. At the top of the 7-
foot drill the material was soft. Backus reported this to Gun-
ning, adding that it ‘‘wasn’t no worse than anything else we
went through.’’33
After this report, Gunning called the surface, then ordered
the men to back up the equipment and the crew left the
mine. When they arrived at the entrance, Clevinger told them
that he had to call the mine inspector and get the roof
checked out. The men were sent home and the mine was
closed.
Clevinger then consulted with Tim Ross from Bright Coal
about the possibility of Bright financing a drive through the
fault and a low coal area beyond to the reserve area. Bright
had estimated the costs of doing this. In January and early
February they had had a series of test borings made from the
top of the mountain in which mine 2 was located, and deter-
mined that the fault lying in front of the eastward face of
mine 2 was about 100 feet thick, with another 650 feet or
so of low coal to reach the reserves. An estimate of the costs
necessary to drive through the rock and low coal was pre-
pared on February 15 under the direction of Gary Criste,
Bright Coal’s chief engineer, based upon the results of the
test borings made in January and February. This estimate
projected a total cost to drive through the rock and low coal
area to be $752,778.34
Whatever his reasons, Tim Ross told Clevinger on the
morning of March 5, that Bright would not undertake to fi-
nance Brier in driving through the fault and the low coal
area. If his reason was financial, and the figures submitted
by Respondent indicate that in a low-margin operation, an
additional three quarters of a million dollars, or 75 cents for
each of the million ton reserve, might logically be more than
Bright was willing to invest in that mine.
It seemed clear, also, that Brier did not process the assets
necessary to drive through the fault. I have no reason to
doubt Clevinger’s statement that he and Maynard formed C.
M. Brier in the fall of 1988 with a total capitalization of
$40,000. I also have no reason to doubt the general accuracy
of a portion of a financial statement introduced by Respond-
ent and showing that Brier had total assets of $150,670.72
as of March 31, 1990. In these circumstances, I find that it
would have been difficult, if not impossible, for Brier to
raise an amount which was almost seven times its total as-
sets, to finance the drive through the fault.
There remain questions as to the seriousness of the roof
problems at the south face in early March, and what, if any,
alternatives Brier was facing if it was to continue driving
south.
As a threshold question, why did not Brier just move back
a few feet, or a few hundred feet, and begin a new drive
south? There is no evidence that anything like this was con-
sidered, but Clevinger did state that Brier had to follow the
mining plan prescribed by Bright, and there is no indication
in the record that Bright was asked for, or proposed, any al-
ternative to the current southern extension of the mine.
As to the safety question, I have noted the differences of
opinion among the experienced employees who would be
working under the roof of the mine. In addition there were
two expert witnesses, one presented by the General Counsel,
and the other by Respondent.
Turning to the expert witnesses, the General Counsel
called on Mark Copley, a coal mine safety and health inspec-
tor assigned to the Mt. Carbon, West Virginia office of the
National Mine Safety and Health Administration (NMSHA).
Copley had been a coal miner for 16 years, working his way
up to certified foreman in the State of West Virginia. After
this, he served with the NMSNA for 20 years, the last 4 of
which were as a Roof Control Specialist. Added to his work-
ing experience, Copley has had constant training in mine
safety and roof control.
Copely testified that he had been familiar with mine 2
since it started in 1987 or 1988. He had assisted in devising
a roof plan35 for this mine. When Brier took over, they wrote
1372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and sequence of installation mandated by plans drawn by Copley’s
office.
36 The resin grouted rods (or bolts) are designed to form a firmer
bond in the roof. As the resin hardens it adheres to the roof material
as well as to the rods, forming what Copley described as a ‘‘beam,’’
like plywood, where the whole is stronger and more rigid than each
part. Also, the ‘‘feedback’’ of excess resin coming out of the bolt
hole gives an indication of the condition of the roof. If there is no
leakage, this indicates, according to Copley, that there are cracks in
the material up above, which will absorb the excess resin and result
in less or no leakage. The existence of cracks could indicate dan-
gerous conditions.
37 There was another fall in 1989 but Copley did not investigate
that one.
38 Before going in, Copley checked a record known as the ‘‘fire
boss book,’’ in which incidents such as a bad roof are required to
be reported. There were no reports of the March 2 bad roof inci-
dents. Fitzwater admitted that it was his job to make such entries
in the fire boss book, and that he had just neglected to do so.
39 A stratascope is a tube about 11-feet long which is inserted in
a drill hole in the roof and will reveal cracks, coal seams, and lam-
inations, and will tell the observer whether the roof is solid or soft.
These instruments are expensive, and in Copley’s office there is only
one available for four inspectors. Ordinarily the inspector does not
carry the stratascope in his car, but arranges to use it when it is re-
quested, or he feels it is necessary.
40 But Copley qualified this latter in his testimony by saying that
he would have liked to have looked at the roof (through the
stratascope) before requiring longer bolts.
to the district manager of NMSHA, stating that fact and
agreeing to assume all existing/mining plans, including the
roof plan. According to Copley, the change in ownership (or
operators) would not require a change of plan.
In the summer of 1989, there was a roof fall at mine 2.
Copley investigated this incident and ordered revisions to the
roof plan which required the use of four or 5-foot fully
grouted resin rods36 throughout the mine.
Other than on the occasion of this fall,37 Copley was in
mine 2 at other times, including a visit on January 25 and
26, 1990. On the basis of his observations of mine 2 he stat-
ed that ‘‘generally, with the exception of those two falls, the
top was pretty good.’’
In connection with this opinion, Copley was asked about
the term ‘‘rider seam.’’ He described a rider seam as a seam
of coal which runs 3 to 6 feet above a coal bed, and above
the roof, or top. It is not a problem when it is high enough,
but can become a problem if it comes down closer to the
roof. Coal is a softer material than the rock in which the roof
bolts must anchor themselves, and if the rock strata are thin
and there is coal close to the roof and extending up to where
a bolt must anchor, then some alternative safety measures
must be taken. Copley indicated that he was aware that there
were rider seams in both mines 1 and 2 at Brier’s location.
He described a number of methods used in the ‘‘very haz-
ardous’’ task of roof control. Besides bolting, which is, ap-
parently, universally used, he mentioned cribbing, using 6-
inches square wooden blocks laid cross ways from floor to
roof; cross bars or headers, wooden beams either bolted to
the roof, or supported from underneath; bearing plates, like
washers, about 6-inche square, at the lower end of a bolt at
the roof line; strips, strips of metal about one-sixteenth of an
inch thick, used mostly for ‘‘sloughing roof,’’ where stones,
dirt or gravel are falling down; and planks, about 1-inch
wide and 8- to 10-feet long, used for roughly the same pur-
pose as strips. Any or all of these methods can be used for
roof problems.
Early in 1990, Mark March Jr., an International representa-
tive and area organizer for the Brier location, had been con-
tacted by Jimmy Duffield about organizing the Brier mines.
March participated throughout the campaign. On March 2,
Mark March was notified that mine 2 had been closed down.
On Monday, March 5 he contacted Jim Jenkins at NMSHA
and told him that he had been informed that mine 2 had ‘‘se-
vere top conditions,’’ and that all the employees had been
laid off.
Jenkins, who was the supervisor of Copley’s work group,
notified Copley to inspect mine 2. Copley, together with Leo
Inghram, the regular mine inspector for the Brier properties,
went to mine 2 on March 8 about 8 a.m. When they got
there, Copley and Inghram talked to Clevinger who said that
the mine was idle, but since some equipment was still inside,
Copley assumed that people were going to be in there was
well, to service or remove the equipment. He therefore de-
cided to go inside to test the roof. At this time Clevinger had
a broken foot and was unable to go inside the mine, but
Richard Fitzwater accompanied the inspectors into the area
where the bad roof had been reported.38
When they arrived at the face where the problem had been
encountered, Copley visually inspected all five entries at the
face. He testified that the roof looked ‘‘pretty good,’’ that is,
there were no cracks, it was not broken up, and looked solid.
He then tested the roof with a hammer, striking it and listen-
ing for a solid or a hollow sound. He noted that at the num-
ber three entry the roof sounded ‘‘drummy,’’ a hollow sound,
as if you hit a drum, or a dishpan, not a clear ring.
Copley’s opinion, qualified by his limiting the opinion to
what he could see with his naked eye, was that, as far as
he could see, and what the visual indications showed, there
was not anything to get alarmed about. He then qualified this
opinion by stating ‘‘to make a real good decision, it’’ (a
stratascope) should have been used.39 You needed to go
about 10 or 11 feet up to get a ‘‘real intelligent idea of ex-
actly what was up there.’’ Copley further observed that based
on what he saw, and what Fitzwater reported to him, he
thought that ‘‘the top could have been controlled. It didn’t
look all that bad. In his opinion, timbering, or the use of
longer bolts could have controlled even a 20-foot span of
roof.40
After he finished his examination at the mine face, Copley
returned to the entrance, where he had another conversation
with Clevinger. Copley recommended to Clevinger that they
ought to look at the roof though a stratascope. Copley then
asked if Clevinger wanted to take a stratascope and look at
the roof, or did he want to have Copley to get his office
stratascope to look at it. Clevinger answered ‘‘no, I think
we’ve decided to shut it down, so I don’t see any use in it
now.’’ Copley did not issue any warning or citation, nor did
he recommend any change in the roof plan, because of
Clevinger’s statement that he was not going to run the mine
any longer.
Sometime in May, Copley thought it was between May 9
or 15, or so, Clevinger called him and said that he wanted
to seal up mine 2 and asked Copley to bring a stratascope
and look at the top. Copley felt that he should check with
his supervisor, or Rosiek. Rosiek asked about the cir-
1373C. M. BRIER CORP.
41 Clevinger admitted that his request in May was because of an
‘‘allegation’’ about the roof and he thought he might need
verification that the roof was bad. There was no indication in his
testimony that he ever considered using a private contractor to con-
duct a stratascopic inspection. Possibly he was already convinced
that the Board’s Regional office would not believe a private contrac-
tor’s word if that contractor was hired by Brier. That might explain
his last remark to Copley, but the fact is he did not do it.
42 Smith noted that he was able to observe this in the test holes
on the left hard entries, but not on the right. Some test holes were
filled up with mud, and no observations could be made of roof con-
ditions in these holes. He stated that he was able to makes his obser-
vations in three test holes, but later admitted that his estimates were
only an ‘‘approximation.’’
43 I note that Clevinger stated to employees that he was getting
$13 per ton at the mine entrance, and also Respondent’s exhibit on
the cost of cutting through the fault, which gave a price of $28.50
per ton at the bargehead at Alloy.
44 Which he later recommended for roof control in mine 1, and
which were adopted by Brier.
cumstances of this situation and when Copley told him, he
said that if they wanted to reopen, or start back up, they
would do it, but just for what Clevinger wanted, they would
not go in with the stratascope. Rosiek told Copley to tell
Clevinger that there were private contractors for work of that
type. Copley told Clevinger what had been decided, and that
there were private contractors for this, and Clevinger replied,
‘‘No, they wouldn’t believe anything I said anyway.41
In September 1990 a mine inspector reported bad top in
Brier’s mine 1. At about the same time Clevinger called
Copley had asked him to come over with his scope. He said
they had to do something. There were no falls, but the top
was broken up and water was leaking in. Copley went over
and found a ‘‘streak’’ of coal at 21 inches up in the top, then
some dark or light rock, another streak at 35 inches, then
dark at 48 inches. It began getting firmer at 54 inches, had
another streak at 62 inches, then firm at 78 inches. One of
these ‘‘streaks’’ was at least 18 inches thick. Copley rec-
ommended installing 4-foot and 6-foot bolts in a staggered
pattern and dropping the entry width to 18 feet.
Later, on October 22, they had a roof fall in mine 1.
Copley again went over, and found a rider seam 6 or 7 feet
up. He recommended 4 and 6 foot both in a staggered pat-
tern, and the use of timbers to aid in showing up the roof.
Respondent presented a witness named Gregory Smith,
vice president for Coal Geology for Stagg Engineering Serv-
ice. Smith’s experience included academic as well as prac-
tical deep mining experience. He has a Master’s degree in
coal geology from the University of South Carolina, he has
taught and published articles on Coal geology, and has
worked for various companies engaged in underground coal
mining since 1974. He is certified as a geologist by the State
of South Carolina, and is a member of he Society of Mining
Engineers. I do not have any question, and no objection was
raised, to Smith’s testifying as an expert in this matter.
Smith’s employer, Stagg Engineering, had done work for
the Company (NERCO) that acquired this property in 1989,
and had been in mine 2 at that time. I do not feel that
Smith’s professional judgment was influenced by this prior
business relationship, and I found him, like Copley, to be a
candid and credible witness.
In July, Smith was retained by Brier to come out and look
at the roof conditions at the south face of mine 2. He in-
spected the area where the bad top was said to be, and, in
his opinion, found a condition which he described as ‘‘poten-
tially very hazardous.’’ He based this opinion on his visual
inspection, conducted by shining his cap lamp up these 1
inch drill holes and visually observing the layers as he
looked up into the holes. He stated that the interval up to the
rider seam ‘‘appeared to be less than three feet, more like
two feet, or in that vicinity.’’42 hen a rider seam is that
close, Smith said, there is little layered rock, and there is less
chance of a warning by cracking and chipping along the wall
of the mine which may foretell an impending fall. It was his
opinion, further, that with this rider seam overhead, contin-
ued mining to the south would encounter rapidly deterio-
rating conditions. The rider seam itself is a problem, but in
addition, the seam affects the area around it. The roots of an-
cient vegetation cause fractures of underlying sediments, fire
clays or sandy clays, conditions which occur directly under
a coal bed. The fractures remain closed, but when mining is
done underneath these areas, the fractures begin to spread in
all directions, with air and moisture adding to the problem.
Based on his observations and experience, Smith stated as
his opinion that it was unsafe to continue to mine in the
southerly direction from where they had stopped in March.
As far as methods to contain the bad roof problem, Smith
stated that there were technically sound methods of contain-
ment available. He mentioned truss bolts, effective but
‘‘enormously expensive and they’re very time consuming to
install;’’ or longer bolts, up to 8 feet, but they are difficult
to install in a low coal area where the roof is under 4 feet.
Bolts must grooved, or bent, in order to install them in the
roof; or straps or strips to keep rock from falling out between
the bolts.
Smith recalled another mine with a series of rider seams
(or beds) above the roof, where a system of truss bolts,
straps, a concrete ‘‘doughnut crib’’ and timbering was used
to control the roof, but more than doubled the cost of remov-
ing the coal if all that roof support had not been necessary.
While Smith admitted that these sorts of controls, truss
bolts and cribs, could allow safe mining, it would increase
the cost of mining from $15 to $24 per ton.43
It seems to be undisputed that the bad roof condition,
caused by the presence of a rider seams, or bed, of coal run-
ning anywhere from 18 to 36 inches above the roof line,
made working dangerous. Copley viewed this condition less
seriously than did Smith, but both agreed that something
would have to be done about it.
Both experts agreed also, on the facts that their examina-
tions of the roof were not as thorough as they should be,
Copley thought he should bring his office stratascope to the
site, and Smith admitted that his examination of the area re-
sulted in conclusions which were only an approximation of
the actual conditions in the roof.
Copley and Smith did agree that the conditions they found,
or which they believed to be present, could be controlled by
means of longer bolts or staggered placement of bolts, in
Copley’s opinion, or by means of truss bolts, timbers, and
cribbing, by Smith. Copley did not estimate costs, but I can
infer from the testimony that the methods suggested by
Copley44 would have been cheaper than the $9 or so per-ton
estimated by Smith for his control systems.
1374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
45 By placing upright timbers to prevent access to the area.
However, at the time he decided to close mine 2, Paul
Clevinger did not have the benefit of these substantially
similar expert opinions about the nature of the roof problem,
its effect on working conditions at the south face, and the
possible means of control of the danger. Clevinger had the
reports from Runtz, on the early morning shift on March 2,
then the reports from Gunning on the test borings made by
the first shift. At that point, his action in timbering off the
dangerous area,45 and moving back mining equipment from
the danger zone, and, after that was done, dismissing the em-
ployees.
The testimony of the employees indicated that they felt
that the roof was dangerous, but, generally, not more so than
at other places in the mine.
At this point, Clevinger had to think of what to do. I be-
lieve his testimony that he thought all along that Bright Coal
would pay the costs of driving through the fault into the re-
serve coal beyond. Certainly the estimates of a million tons
in the reserves would make such action at least arguably
profitable for both Brier and Bright. Bright had had an esti-
mate of the costs, $752,778, of driving through the fault and
the low coal area beyond, at least since February 15, and it
is likely that Brier also knew of these estimated costs. But
on March 5, the Monday after mine 2 was closed on Friday
morning, Bright, through Tim Ross, informed Clevinger and
Maynard that they had decided not to go through the fault.
This was the point at which Clevinger and Maynard decided
they would no longer operate mine 2. In the same conversa-
tion on the morning of March 5, they informed Ross that
‘‘under existing conditions and without financial support’’
they did not want to continue to operate the mine and wished
to terminate the mining agreement for that mine. Ross agreed
to release Brier from their contract and further agreed to me-
morialize their conversation in a written notice of their mu-
tual agreement to terminate their contract effective March 6,
1990.
Ross did not testify, and neither Maynard nor Clevinger
testified about any consideration being given to continuing in
the south direction which had been laid out by Bright Coal
after the northern route around the fault was found to be im-
practical. Nor was there any testimony that Maynard and
Clevinger considered taking steps to control the bad roof in
the southern entries. Clevinger had 17 years’ experience as
a miner, a supervisor, and an operator. He must have experi-
enced bad top during his years in the business. He must have
known, at least generally, what methods were available to
control the top. But Clevinger mentioned none of this to
Ross in their March 5 conversation. Once Ross said that
Bright Coal was not going to pay to drive through the fault,
Clevinger and Maynard said we do not want to continue to
operate this mine. Raving made that decision, on March 7,
Maynard and Clevinger sent letters to all of the employees
of mine 2, and the Hoot Owl, midnight, shift, that their lay-
off was to be ‘‘permanent with no expectation of recall.’’
The letter went on to explain this action by ‘‘the size of the
geologic fault and we have no hope of ever reopening this
mine, it has deemed it necessary [sic] to effect this perma-
nent reduction in the workforce.’’
When Copley arrived at mine 2 on March 8, at the request
of the Union, the decision to close had been made, Brier’s
contract with Bright had been rescinded, and all of the em-
ployees permanently laid off. When Copley offered, indeed,
recommended at the conclusion of his inspection that he get
his stratascope and come back, Clevinger declined, saying he
had already decided to shut it down. Even taking into consid-
eration the fact that Clevinger had already decided to shut
down mine 2, this reception accorded Gopley contrasts
sharply with the September 1990 incident at mine 1, where,
instead of shutting down the mine, Clevinger called Copley
asking him to bring a stratascope and to make recommenda-
tions on the bad top at mine 1.
In summarizing this evidence, I can understand Brier’s
concern about the top at mine 2. I would have difficulty in
finding a violation here if I were convinced that the south
entries were too dangerous for miners to work in and could
not be made safe. But the evidence shows that this was not
the case. Both Copley and Smith agreed that the roof prob-
lems in mine 2 could be controlled. A similar problem in
mine 1 was controlled later in 1990, without resorting to the
extraordinary and expensive methods mentioned by Smith.
Why, then, was some sort of roof control not even dis-
cussed by Brier and Bright, or between themselves by May-
nard and Clevinger, the principals in Brier. There was no
evidence that any discussions took place, and no evidence as
to why not. The absence of any reason or rationale leaves
open only the inference which I draw, that there was another
reason for the decision to close, so casually and precipi-
tously, even before the mine was inspected by the NMSH.
That reason is, of course, the reason advanced by the General
Counsel, that the Respondent wanted to rid itself of the ma-
jority of union adherents. Those adherents were mostly in
mine 2 and on the Hoot Owl shift. This reason is borne out
by Respondent’s later actions in a similar situation at mine
1, and, of course, by the substantial evidence of threats, in-
timidation, interrogation and the impression of surveillance
revealed through the testimony of a number of witnesses.
I, therefore, find that the closure of mine 2 and the tem-
porary and permanent layoffs of the employees of that mine
and the Hoot Owl shift, was caused by the union activity of
a number of employees of the affected groups, in violation
of Section 8(a)(3) of the Act. Hedison Mfg. Co., 249 NLRB
791 (1980); Jacobs Marti & Sons, 264 NLRB 30 (1982).
E. The Status of Charles Alley and Hammond Hanshaw
1. Haymond Hanshaw, one of several brothers working at
the Grassy Fork (Barbara Lynn) complex, had been em-
ployed by Mike Hill, of Hill Enterprises who operated mine
2 up to August 1989. On January 10, 1989, Hanshaw was
injured on the job. He returned to work on March 8, but re-
ceived a back injury on May 13, 1989, and was not released
to return to work until March 10, 1990.
Arid Hanshaw, Haymond’s brother, was still working for
Brier at mine 1 at the time he testified in this matter on Oc-
tober 23, 1990. Arid Hanshaw testified that he attended a
meeting called to discuss the takeover of the Grassy Fork
mines by Brier. Maynard and Clevinger were there, as was
Tim Ross from Bright Coal, and Mike Hill, the departing
employer. In response to a question about the employees Tim
Ross said that the new company was going to keep all of
the Hill Enterprises men. Clevinger said the same thing. Arid
asked about an employee named Willard Brown, who was
out of work with a heart attack, and about his brother
1375C. M. BRIER CORP.
46 Shawkey, as noted above, testified in this proceeding, but was
not asked any questions about this incident.
47 Neither Clevinger nor Maynard testified about Haymond’s sta-
tus. Tim Ross, of course, did not testify.
48 This involved maintenance and mechanical work on the belts
used to carry coal from the mine face to the entrance.
49 While he was in his second week of work Alley was told by
Fitzwter that Brier was planning to lease a ‘‘Marietta’’ miner, a
heavier machine than those used to mine coal, to drive through the
sands tone fault. Since Alley had been a miner operator before, they
were going to have him run the Marietta through the fault. As has
been noted, right Coal declined to underwrite the lease of the Mari-
etta miner, or the drive through the fault.
50 None of the employer’s witnesses, Taylor, Fitzwater, or May-
nard, testified about this incident. I find that Alley’s version of
events is credible, logical, and undenied.
51 All of those employees named in the complaint as having been
laid off with the exception of Mark Acord and Larry Boggs, who
did not vote.
52 Bright Coal, or its current principal, NERCO, are not parties to
this proceeding, and no order issued here can affect them.
53 I note the receipt of a letter from Brier’s counsel dated Decem-
ber 3, 1990, stating that as of November 20, 1990, Brier has ceased
all operations. I leave consideration of this communication to the
compliance stage of these preceedings.
Haymond. Ross and Clevinger replied that they were going
to take all of Hill’s employees and that everything was going
to be the same.
Shortly after that meeting, Arid’s supervisor, Charles
Shawkey, gave him two copies of an employee handbook
issued by Brier for its employees. One of these was for Arid
and the other was for his brother Haymond.46 Arid delivered
the handbook to Haymond.
Haymond himself testified that shortly after Brier took
over, on August 16, 1989, he went to the mine and talked
to Paul Clevinger about his job. Clevinger told him that they
had taken over the mine, and that they would take all of
Hill’s men. He assured Haymond that ‘‘when they release
you, your job’s waiting on you.’’
When Haymond was finally released by his doctor, on
March 10, 1990, he again went to the mine. He talked to
Maynard, and was told ‘‘I’m sorry, you are no longer em-
ployed here.’’ Maynard said something to the effect that
Haymond was not ‘‘excepted’’— (accepted?) in the contract
when the mine changed hands.47
In these circumstances, it is undenied that Clevinger as-
sured employees that under Brier everyone would be contin-
ued on as it had been. Clevinger assured Arid Hanshaw that
they were going to take all of Hill’s employees. He assured
Haymond who was interested enough to come to the mine
on August 1989 that when he was released by his physicians,
his job was waiting.
Thus, I find that Haymond Hanshaw continued as an em-
ployee, like all the others, until March 2, 1990, and was af-
fected, like all the other employees at mine 2, by the tem-
porary, then the permanent layoffs on March 2 and 5.
2. Charles Alley applied for work at the Grassy Fork com-
plex early in 1990. Maynard called him later and offered him
a job as a bolter. Alley said he was not qualified to do that
job. Later he received a second call from Maynard, who told
him that the Company would move someone else to the bolt-
er job and offered Alley a job as a belter.48 He accepted and
reported to work the second shift at mine 2 on February 5.
He was not told whether the job would be temporary or per-
manent.49 Alley was an active and vocal union adherent, as
noted above, but there is no allegation in the complaint, nor
any indication in the record that his union activity led to his
layoff on February 23. On that date, after completing the
shift, Alley was told by his supervisor, Jerry Taylor, that an
employee named Brian Brown was coming back from an in-
jury, and Alley was the junior man there. Alley asked Taylor
if the layoff was temporary or permanent, but Taylor did not
know, and he told Alley to see Clevinger or Maynard. Alley
did return to the mine on the next working day, February 26,
and spoke to Fitzwater and later to Maynard. Both of these
men said that they did not know whether the layoff would
be permanent.
After the further events of that week of February 26, Alley
received a notice of permanent layoff dated March 5.50
Under these circumstances, I find that Alley was only tem-
porarily laid off on February 23, that he had a substantial
likelihood of being recalled if the mine had remained open,
was treated just like all of the other employees of mine 2
and is entitled to be included in any remedy provided for
those employees.
F. The Challenged Ballots
Since I have found here that all of the 23 individuals
named in the complaint were discriminatorily laid off perma-
nently on March 5, it follows that those who voted in the
election on April 5, and whose ballots were challenged by
the Employer, were entitled to vote.51 I, therefore, rec-
ommend that the challenges to their ballots be overruled,
their ballots be opened and counted, and that the Board issue
a certification based on the results of the election including
these challenged ballots.
IV. THE REMEDY
Having found that the Respondent, C. M. Brier Corp., has
engaged in certain unfair labor practices, I shall recommend
that it cease and desist therefrom, and that it take certain af-
firmative action designed to effectuate the policies of the
Act.
Since the Respondent is a contract miner, in which capac-
ity it supplies mining services to others who own or have
rights to mine coal,52 and since Brier has agreed with the
proprietors of these mines to discontinue mining in mine 253
and to the recession of their agreeent under which Brier was
operating mine 2, I can, and will, recommend only that the
Respondent reinstate the employees named in the complaint
to their same or substantially equivalent positions in case it
or its successors or assigns resume contract mining of coal
whether in the State of West Virginia, or elsewhere. Beech
Branch Coal Co., 260 NLRB 907 (1982); Williams Motor
Transfer, 284 NLRB 1496 (1987).
I will further recommend that the Respondent be required
to make certain of its employees whole on account of the
discrimination against them by the payment to them of sums
of money representing earnings to which they would have
been entitled in the absence of such discrimination, from
March 2, 1990, until such time as such employees shall have
obtained substantially equivalent employment with other em-
ployers, less interim earnings. These sums would be com-
puted on a quarterly basis in the manner prescribed in F. W.
1376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Woolworth Co., 90 NLRB 289 (1950), with interest thereon
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
CONCLUSIONS OF LAW
1. C. M. Brier Corp. is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Mine Workers of America is a labor organiza-
tion within the meaning of the Act.
3. By threatening its employees with closing of its mine
in Dixie, West Virginia, the Respondent has violated Section
8(a)(1) of the Act.
4. By interrogating its employees about their union affili-
ations and activities, the Respondent has violated Section
8(a)(1) of the Act.
5. By giving to its employees the impression that their
union activities were under surveillance, the Respondent has
violated Section 8(a)(1) of the Act.
6. By closing its mine 2, temporarily, on March 2, 1990,
and then permanently on March 5, 1990, and by laying off
employees in that mine, and other employees who worked on
a late night maintenance shift both in mine 1 and mine 2,
Respondent has violated Section 8(a)(3) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]