C & W Mining Co., Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1980

248 N.L.R.B. 270 (N.L.R.B. 1980)

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C & W Mining Co., Inc. and/or C & W Hauling
Co., Inc. and Fraternal Association of Special
Haulers, Local 100. Case 8-CA-12314
March 11, 1980
DECISION AND ORDER
BY CAHIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 13, 1979, Administrative Law
Judge Thomas A. Ricci issued the attached Deci-
sion in this proceeding. Thereafter, Respondent and
the General Counsel respectively filed exceptions
and cross-exceptions and supporting briefs, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order, as modified herein.
1. Respondent stipulated at the hearing, and the
Administrative Law Judge found, that Fraternal
Association of Special Haulers, Local 100, herein
called FASH Local 100 or the Union, is a labor or-
ganization within the meaning of the Act. Howev-
er, Respondent now contends that it can no longer
so stipulate because the Court of Appeals for the
Third Circuit thereafter held in an antitrust case1
that FASH is not a separate, independent entity but
is part of a larger organization whose aims are in-
consistent with employee representation. However,
the court made no determination that FASH is not
a labor organization, and the record herein shows
that employees participate in its affiliated Local
100, which exists at least in part to represent em-
ployees for the purpose of dealing with employers
with respect to wages, hours, and conditions of em-
ployment. We therefore agree with the Administra-
tive Law Judge that FASH Local 100 is a labor
organization within the meaning of Section 2(5) of
the Act.
2. The Administrative Law Judge found appro-
priate a unit of 23 truckdrivers and, inter alia, ex-
cluded therefrom 60 miners 2 in view of the rare in-
terchange between the two groups and the com-
pletely different nature of their duties and skills.
Although Respondent does not disagree as to the
differences in their work and conditions of employ-
ment, it nevertheless contends that the miners
i United States Steel Corporation, 601 F.2d 1269 (3d Cir. 1979).
2 The Administrative Law Judge also excluded four mechanics.
248 NLRB No. 39
should be included because of a "history of trans-
fers" between them and the drivers in the 2 years
prior to the hearing. It also contends that the me-
chanics should be included because they service
the trucks.
In support of the first contention, Respondent
relies on the testimony of its president, William
Catlett, that "seven people . . . have changed back
and forth from driving," and that two of them
transferred from driving to the mines. However,
Catlett's affidavit, which he gave to the General
Counsel, contains the following statement:
We do not normally switch our employees
from the mining operation to the driving oper-
ation. One of the highlift drivers . . . volun-
teered to drive the truck across the picket line,
so I let him. But mostly [we] don't exchange
drivers with operators. If a driver wants to
transfer over to the mining operation, I gener-
ally will let him come, but of the three or four
men who went out to the mining site, two
came back to drive full time.
Employee Gary C. Quetot, whose description of
the differences between the drivers and the miners
was relied on by the Administrative Law Judge,
testified in substance as follows: On two occasions
at most did a mechanic become a driver and "very
seldom" did drivers become mechanics. In one or
two instances, drivers became miners and miners
became drivers, but none of the miners served as
drivers except temporarily during the strike.
As noted above, the Administrative Law Judge's
finding as to the differences between the drivers
and the miners is uncontested by Respondent. As
to the amount of interchange, it appears that em-
ployees do not "normally switch from the mining
operation to the driving operation," and that
during a 2-year period exclusive of the strike, there
were only a few permanent transfers and a small
number of temporary transfers. Accordingly, we
find that such interchange was not sufficient to
render inappropriate a drivers' unit which excludes
miners and mechanics.3
3. The General Counsel excepts to the failure of
the Administrative Law Judge to make a finding as
to the following no-solicitation rule which Respon-
dent promulgated in October 1978:4
It is contrary to company work policy to dis-
seminate written materials of any nature on
company property, and it is also prohibited to
3 See Diamond Standard Fuel Corp., 179 NLRB 702, 705 (1969), wher-
ein mechanics were excluded from a unit of drivers because of their dif-
ferent work, conditions of employment, and separate interests
' All dates below refer to 1978.
C & W MINING CO.. INC. 271
discuss organization of a union during working
hours.
It is well established that the organizational
rights of employees require that they be permitted
to solicit on their employer's premises on nonwork-
ing time and to distribute materials on nonworking
time in nonworking areas of the plant. 5 According-
ly, we find that Respondent's rule violates Section
8(a)(1) of the Act because: (1) its ban on the distri-
bution of written materials, which would include
union literature, is not limited to working time and
working areas; (2) its no-solicitation rule ambigu-
ously proscribes soliciting "during working
hours";6 and (3) the no-solicitation rule only ap-
plies to discussion about union organizing.
4. The Administrative Law Judge found that by
October 2, 1978, when Respondent refused to
accede to the Union's demand for recognition and
bargaining, the latter had achieved majority status
as 18 of the 23 unit employees then on Respon-
dent's payroll had signed reliable and authenticated
cards which clearly and unequivocally authorized
the Union to bargain on their behalf. 7 However,
Respondent takes exception to the foregoing find-
ing and states that Joseph O'Donnell, the Union's
special representative, testified that he told the em-
ployees attending the first organizational meeting
on September 288 that cards would only be used to
obtain an election. Respondent therefore contends
that the Union did not achieve majority status be-
cause the six cards signed on that date9 were in-
validated by O'Donnell's statement and should not
be counted. We find no merit in this contention for
the following reasons:
In its initial cross-examination of O'Donnell, Re-
spondent asked him whether he told the employees
at the September 28 meeting that the only purpose
a Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962).
1 Parker Seal Company, a Division of Parker-Hannifin Corporation, 233
NLRB 332 (1977). Chairman Fanning and Member Jenkins additionally
find Respondent's proscription against soliciting "during working hours"
unlawful for the reasons expressed in their dissent in Essex International
Inc., 211 NLRB 749 (1974). In agreeing with this finding, Member Trues-
dale notes that the prohibition against soliciting "during working hours"
would be unlawful under any of the views expressed in Essex.
Six are dated September 28: Sammy Adams, Randy W. Broomall,
Robert Cehrs, John E. Dailey, Craig Downing, and Ross E. McPherson;
nine are dated September 29: Jack L. Cochran, Marty C. Hostetter,
George K. House, Kerry A. Lewis, John M Muschweck, John Need-
ham, Wesley G. Noel, Robert D. Ross, and Gary C. Quetot; two are re-
spectively dated October I and 2: Robert F. Fickel and Vernon Kuban-
ken. Although one signed card, that of Tyndall L. Hewitt, was undated,
Adams testified without contradiction that he received it on October I
As indicated by the Administrative Law Judge, the parties stipulated
that there were 23 employees in the unit on October 1. However, they
disagreed as to two other individuals whose status was not resolved by
the Administrative Law Judge Thus, Respondent wished to include
Richard S. Clark who did not sign a card, and the Union wished to in-
clude John H. Hartly who signed a card on September 29.
" The following employees attended this meeting: Adams, Broomall,
Cehrs, Dailey, Downing, McPherson, and Quetot.
9 As noted above, Quetot's card is dated September 29
of the cards was for election purposes. The latter
responded, "No," and testified that he told the em-
ployees that he "would turn [the cards] in to the
Labor Board and get an election unless Mr. Catlett
would agree to recognize the Union." Respondent
thereupon rephrased the question as follows: "Did
you tell [the employees at the September 28 meet-
ing] that the reasons for the signing of the cards
would be strictly for election purposes?" O'Don-
nell replied: "That is correct."
Respondent's next question dealt with another
meeting of the Union which was held on the morn-
ing of October I and attended by all of the unit
employees: "Did you explain to the drivers that the
purpose of your getting the cards was strictly for
the election purpose?" O'Donnell replied: "No, I
didn't tell them that because at this time they was
[sicJ already on strike." '0
On redirect examination, O'Donnell was asked
by the General Counsel what he told employees
about the purpose of signing the cards. O'Donnell
responded that he "told them they were to get an
election . . . that the only ones that would see
those cards would be the Labor Board unless Mr.
Catlett would agree to recognize the Union, and
then we would negotiate .... "
Adams, who, as noted above, was at the Septem-
ber 28 meeting, testified on both direct and cross-
examination that O'Donnell told the employees
that the purpose of the cards was "to join the
Union and get recognition" and that "we could use
them for an election if we had to."
Dailey, who, as noted above, was also present at
the September 28 meeting, testified on cross-exami-
nation that he did not "really remember" what was
said that night. However, he also testified un-
equivocally that when he gave cards to Hostetter
and Muschweck, which were signed on September
29, he did not say anything to them about an elec-
tion and that he "told them that if they thought
they wanted a union, that these were the cards for
them to sign."
As indicated above, O'Donnell initially testified
on cross-examination that he told the employees on
September 28 that the purpose of the cards was to
obtain an election unless Respondent agreed to rec-
ognize the Union. Although, on further cross-ex-
amination O'Donnell testified that he told the em-
ployees at that time that the cards were "strictly
for election purposes," it is significant that, on still
'O As found by the Administrative Law Judge, O'Donnell informed
Respondent Vice President Earl Manning directly after this meeting that
the employees were on strike and requested recognition on the basis of
the authorization cards. The record also shows that Quetot, a leading
union activist, was one of the employees who participated in making this
request The record further shows that thereafter O'Donnell renewed the
request, which Catlett rejected, and that a clear majority of the emplo-
ees manned the picket line
C & W MINING CO.. NC.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further cross-examination, he testified concerning
the October 1 meeting attended by all of the unit
employees that he did not tell them that the cards
were strictly for election purposes. It is also signifi-
cant that on direct examination O'Donnell clarified
the replies he made on cross-examination by testify-
ing that he had told the employees that the cards
were for the dual purpose of seeking an election if
Respondent did not accede to the Union's demand
for recognition.
Corroborating O'Donnell's testimony as to the
dual purpose of the cards was that of Adams who
was present at the September 28 meeting. While
Dailey could not recall just what was said at that
meeting, it is clear from what he told Hostetter and
Muschweck when he asked them to sign cards that
O'Donnell had conveyed the idea that the cards
were not solely for the purpose of obtaining an
election.
Finally, the events transpiring at the time the
Union achieved its majority status leave no doubt
as to the employees' understanding of the purpose
of the card. Thus, as already noted, O'Donnell as
well as Quetot and a number of other employees
based their demand for recognition and bargaining
on the authorization cards, and most of the em-
ployees manifested their support of the strike for
recognition by participating in the picketing of Re-
spondent's plant.
In view of the foregoing, we find that Respon-
dent has not met its burden of impeaching the
cards signed on September 28 by showing that the
signers thereof were told that they were to be used
solely for the purpose of obtaining an election.
Assuming, however, that O'Donnell did tell the
employees at the September 28 meeting that the
sole purpose of the cards was to obtain an election,
we nevertheless find that there still remained a suf-
ficient number of valid cards to maintain the
Union's majority status. Although such a statement
would invalidate the cards of Broomall, Cehrs,
Downing, and McPherson, the cards of the other
three employees at the meeting would continue to
be valid because it is clear from the testimony of
Adams and Dailey and from Quetot's participation
in requesting recognition for the Union that they
understood from what was said at the meeting that
the cards were not for the sole purpose of obtain-
ing an election. Thus, elimination of 4 of the 18
cards would result in a union majority of 14 of the
23 employees in the stipulated unit. Even if the unit
is enlarged in accordance with the contentions of
the parties by including therein either or both
Clark, who did not sign a card, and Hartley, who
I' See Cumberland Shoe Corporation, 144 NLRB 1268 (1963), enfd. 351
F.2d 917 (6th Cir. 1965)
did sign a card, the Union's majority would remain
intact. 2
Accordingly, we conclude in agreement with the
Administrative Law Judge that the Union repre-
sented a majority of the employees in the appropri-
ate unit at the time it made the request for recogni-
tion and Respondent refused to accede thereto.
5. The General Counsel contends, and we agree,
that the Administrative Law Judge improperly
found that Respondent did not violate Section
8(a)(3) of the Act because it did not implement its
8(a)(1) threats to discharge the strikers.
At the outset of the strike on October 1, Man-
ning told the employees that they would be consid-
ered as "quits" if they did not go to work. During
the next several days, Respondent repeatedly
threatened that the strikers would cease being em-
ployees if they did not abandon the strike. On Oc-
tober 3, for example, Catlett warned the strikers
that they would be fired if they did not return to
work. The record also shows that on the same day
Respondent handed the employees a notice which
states, inter alia, that any driver who did not return
to work on the following morning would be "per-
manently replaced." About October 4, more than a
week before Respondent's regular payday, Catlett
informed Quetot and other strikers who continued
to picket that they were fired, gave them what he
termed their "final paycheck," and declared, "Get
the hell off my property. You don't work here any-
more." On the next day, Adams and Downing and
a number of other strikers who were picketing
were also given their paychecks.
As indicated above, the Administrative Law
Judge found that "by the entire strategy of telling
the employees that they would be considered as
'quits' if they did not abandon the strike, by giving
them their paychecks when not due in ordinary
course, and by Catlett's outright statement that the
men were fired for striking . . . Respondent effec-
tively threatened to inflict an illegal discrimination
upon them, and thereby violated Section 8(a)(l)."
However, he found that said conduct was merely a
"tactical maneuver" by Respondent to put pressure
on the employees to abandon the strike and the
Union and that therefore Respondent did not "in
fact" discharge the strikers.
The Board has recognized that it is sometimes
difficult to determine whether an employer, by its
remarks, has discharged strikers in violation Sec-
tion 8(a)(3), or has lawfully replaced them, or has
simply attempted to intimidate them in violation of
Section 8(a)(l) in an effort to deter them from
12 If only Clark is included, there would be 14 valid cards for a unit of
24 employees. If only Hartley is included, there would be 15 valid cards
for a unit of 24 employees. Finally, if both are included, there would be
15 valid cards for a unit of 25 employees
C & W MINING CO., INC. 273
striking. 3 Each case requires a careful examination
of the facts. However, Respondent left no doubt in
the instant case that it was discharging the strikers
when it not only made an unconditional statement
that it was firing them but also handed out "final
paychecks" in the middle of a pay period and or-
dered them off the premises because they "no
longer worked" there. 4 That the strikers there-
after accepted an invitation to meet with Respon-
dent in connection with the latter's unlawful effort
to have a committee displace the Union as their
representative, terminated the strike, and returned
to work does not alter the indisputable fact that
they were discharged while still on strike.
Accordingly, we find, contrary to the Adminis-
trative Law Judge, that the strikers herein were ef-
fectively discharged on October when they were
told by Respondent that it would no longer consid-
er them to be employees if they went on strike. We
shall therefore order that the strikers receive back-
pay from October I until the date of their reinstate-
ment or offer of reinstatement. 15
6. The Administrative Law Judge found that
during the course of the strike Respondent violated
Section 8(a)(l) of the Act by threatening to sell its
business. However, he rejected the General Coun-
sel's contention that Respondent also violated Sec-
tion 8(a)(1), (3), and (5) after the strike when it
"advertised for sale and/or sold some of its trucks"
without "notifying and/or bargaining" with the
Union.
As found by the Administrative Law Judge, Re-
spondent sold only 2 of its 30 trucks 3 months after
the strike but none of its drivers lost any work as a
result of the sale. As neither the advertisement in
late October nor the subsequent sale of two trucks
adversely affected the drivers' terms and conditions
of employment, we conclude in agreement with the
Administrative Law Judge that Respondent had no
obligation to notify the Union or bargain with it
prior thereto and hence did not commit any of the
alleged unfair labor practices. However, we dis-
13 See, e.g., Lipsey. Inc., 172 NLRB 1535, 1547-48 (1968); Matlock
Truck Body & Trailer Corp., and its Agent R L. Matrlock, 217 NLRB
346, 348-349 (1975); Editorial "El Imparcial." Inc., 123 NLRB 1585, 1586
(1959).
14 Accurate Die & Manufacturing Corp., 242 NLRB No. 46 (1979).
]s However, we note that, in dismissing this allegation of the com-
plaint, the Administrative Law Judge commented that even after Respon-
dent "discharged" tile strikers, the strikers "continued to withhold their
services because, as a matter of personal choice, they themselves wanted
to refuse to work." Such all issue is a matter for compliance, for, as we
noted recently in .4blitier and Grnoodill. Inc., 241 NLRB No. 5 (1979), sl
op, p. 3, fni 5 (1979), "even in the absence (of an offer of reinstatement,
the employer remains free to avoid or reduce its backpay obligation by
establishing [at the comnpliance stage of the proceeding] that the [dis-
charged strikers] swould niot have accepted the offer if made . " and
instead continued to withhold their services as a matter of personal
choice
avow as unnecessary the Administrative Law
Judge's additional discussion of the issue in the
final paragraph which commences on page 12 of
his Decision.
CONCLUSIONS OF LAW
Add the following Conclusions of Law to those
found by the Administrative Law Judge:
"5. By promulgating, maintaining, or implement-
ing an overly broad rule prohibiting distribution of
all written materials on company property, prohib-
iting solicitation at its plant during working hours,
and prohibiting solicitation only with respect to
union organizing, Respondent has interfered with,
coerced, and restrained its employees in the exer-
cise of rights guaranteed them by Section 7 of the
Act, thereby engaging in unfair labor practices pro-
scribed by Section 8(a)(1) of the Act.
"6. By discharging the strikers for engaging in
protected concerted activity and for supporting the
Union, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
C & W Mining Co., Inc. and/or C & W Hauling
Co., Inc., Lisbon, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Delete paragraph l(d), insert new paragraphs
l(d) and (e), and reletter the subsequent paragraphs
accordingly:
"(d) Discharging employees for engaging in a
strike or in union activities or otherwise discrimin-
ating against them in order to discourage them
from being or becoming union members.
"(e) Promulgating, maintaining, or implementing
a rule prohibiting distribution of union literature in
nonwork areas during nonworking time; prohibit-
ing solicitation on behalf of the union at the plant
during the employees' nonworking time; and pro-
hibiting solicitation only with respect to union or-
ganizing."
2. Delete paragraphs 2(b) and (c), insert new
paragraph 2(b), and reletter the subsequent para-
graphs accordingly:
"(b) Offer Gary C. Quetot and the discharged
strikers, who have not been reinstated, immediate
and full reinstatement to their former position, or,
if such positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
C & W MINING CO., INC
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
niority or other rights and privileges previously en-
joyed and make them whole for any loss of earn-
ings, plus interest, which they may have suffered
by reason of our discrimination against them, in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977)."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the oppor-
tunity to present their evidence, the National
Labor Relations Board has found that we violated
the law and has ordered us to post this notice and
we intend to abide by the following.
WE WILL NOT refuse to bargain collectively
with Fraternal Association of Special Haulers,
Local 100, on demand, in the following bar-
gaining unit:
All truck drivers employed at our Lisbon,
Ohio, facility, excluding all mining equip-
ment employees, all mechanics, all office
clerical employees, and all professional em-
ployees, guards and supervisors as defined in
the Act.
WE WILL NOT propose and assist in the for-
mation of any employee committee to bargain
for our employees as a device to frustrate their
desire to be represented by any union of their
own choice.
WE WILL NOT negotiate conditions of em-
ployment with any such company-assisted em-
ployee committee.
WE WILL NOT discharge employees for en-
gaging in a strike or in union activities or oth-
erwise discriminate against them in order to
discourage them from being or becoming
union members.
WE WILL NOT coercively interrogate our
employees concerning their union activities or
sympathies.
WE WILL NOT threaten to sell or otherwise
discontinue our business to discourage union
activities by our employees.
WE WILL NOT solicit grievances from our
employees or discuss such grievances with
them in order to discourage their union activi-
ties.
WE WILL NOT promise increases in pay for
the purpose of dissuading them from engaging
in union activities or tell our employees that in
no event will we recognize a union of their
choice.
WE WILl. NOT promulgate, maintain, or im-
plement a no-solicitation rule prohibiting em-
ployees from distributing union materials in
nonworking areas during nonworking time.
WE WILL NOT promulgate, maintain, or im-
plement a no-solicitation rule prohibiting em-
ployees from discussing union organizing
during nonworking time.
WE WILL NOT promulgate, maintain, or im-
plement a no-solicitation rule which only pro-
hibits discussion about union organizing.
WE WILL NOT discourage membership in
Fraternal Association of Special Haulers,
Local 100, or in any other labor organization,
by discharging employees for engaging in a
strike or in other union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
join Fraternal Association of Special Haulers,
Local 100, or any other labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in other
concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activi-
ties.
WE WILL, upon demand, recognize Frater-
nal Association of Special Haulers, Local 100,
as the exclusive representatives of all employ-
ees in the appropriate bargaining unit, and bar-
gain with that Union in good faith and if an
understanding is reached, embody such an un-
derstanding in asigned agreement.
WE WILL offer Gary C. Quetot and the dis-
charged strikers, who have not been reinstat-
ed, immediate and full reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges previously enjoyed, and
WE WILL make them whole for any loss of
earnings, plus interest, which they may have
suffered as a result of our discrimination
against them.
C & W MINING CO., INC. AND/OR C
& W HAULING CO., INC.
C & W MINING CO., INC. 275
DECISION
STATEMENT OF THE CASE
THOMAS A. Rlccl, Administrative Law Judge: A hear-
ing in this proceeding was held at Lisbon, Ohio, on May
30 and 31, 1979, on complaint of the General Counsel
against two corporate entities named the C & W Mining
Co., Inc., and the C & W Hauling Co., Inc., together
here called the Respondent or the Company. The com-
plaint issued on January 3, 1979, based on a charge filed
on October 6, 1978, by Fraternal Association of Special
Haulers, Local 100, here called the Union or the Charg-
ing Party. The issues are whether the Respondent unlaw-
fully refused to bargain with the Union on request,
whether it discharged an employee unlawfully, and
whether it otherwise violated Section 8(a)(2) and (1) of
the National Labor Relations Act, as amended. Briefs
were filed by both parties.
Upon the entire record and from my observation of
the witnesses I make the following:'
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
C & W Mining Co., Inc., a State of Ohio corporation,
does business at Lisbon, Ohio, where it is engaged in
mining and transporting coal. Annually, in the course of
its business, it ships goods valued in excess of $50,000 di-
rectly to points located outside that State. C & W Haul-
ing, Inc., is a corporate name used by C & W Mining
Co., Inc., for that portion of its business which does the
actual transportation of coal by motor vehicles to points
outside the State. I find that the Respondent is engaged
in commerce within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
I find that Fraternal Association of Special Haulers,
Local 100, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
This is essentially a refusal-to-bargain case. In late Sep-
tember 1978, a majority of the Respondent's employees
in an appropriate bargaining unit joined Local 100 of the
Fraternal Association of Steel Haulers, a labor organiza-
tion. They struck for recognition on the morning of Oc-
tober . The Respondent refused to extend recognition
on demand of the Union's special representative, and in-
stead it resorted to various devices designed to dissuade
the employees from their prounion resolve and to entice
them to abandon the strike and return to work. In the
process, according to the complaint, agents of the Re-
spondent committed a number of unfair labor practices.
They are said to have illegally interrogated employees,
offered them monetary inducements, threatened dis-
charges, threatened to sell or reduce the business oper-
ations in reprisal, etc., all in violation of Section 8(a)(1)
Errors in the transcript have been noted and corrected
of the Act. By its refusal to bargain on request, the Re-
spondent is also said to have violated Section 8(a)(5).
There is a further allegation that the Company encour-
aged the employees to set up a negotiating committee as
bargaining agent in place of the Union. and that by such
assistance to the committee it violated Section 8(a)(2). A
final allegation of the complaint is that the Respondent
discharged one Gary Quetot, an outstanding unioneer, in
violation of Section 8(a)(3).
The Respondent denies the commission of any unfair
labor practices and advances an affirmative defense of
discharge for just cause with respect to Quetot.
B. Refusal To Bargain on Request; the Appropriate
Bargaining Unit
The setting for all this was the Respondent's mining
operation at Lisbon, Ohio. There are two aspects to its
business. About 60 employees do nothing but mining
work, strictly ground digging. They do not leave the
premises and do not operate any moving equipment
except such as may be used for direct mining operations.
The Respondent also delivers its coal to consumer pur-
chasers, located in other areas, some 30 or 40 or even 50
miles away. For deliveries it owns and operates a
number of trucks, about 30 at the time of the events, all
driven by its direct employees who are paid according to
distances driven or loads carried. The Company also has
some of its coal delivered by independent trucking com-
panies who do their work under contract, and by indi-
viduals who own and operate their own trucks on a
truck lease basis. The men who drive these trucks are
not employees of the Respondent.
One defense contention advanced by the Respondent
at the hearing is that the truckdrivers who sought to bar-
gain through the Union do not constitute an appropriate
bargaining unit within the statutory concept. The argu-
ment is that they must be grouped together with me-
chanics and all the employees who do the mining work.
Unlike the truckdrivers, who work away from the prem-
ises, are under separate supervision, and operate moving
vehicles over the highways, the miners are hourly paid
and never leave the premises. The miners punch a time-
clock, the drivers do not; the working hours of the driv-
ers are uncertain, varying from day to day depending on
how many loads they deliver that day and how far
away, while the miners have a fixed schedule of work;
the miners are paid for overtime work, the drivers are
not. Moreover, as will appear, the Respondent deems the
driving and delivery aspect of its business as a complete
and separate part of its operation. Interchange of work-
men between the two groups is a rarity, in view of the
completely different nature of work duties and skills.
The Board has long held that truckdrivers, be they
employees of a retailing company, a manufacturing or a
mining operation, may constitute a separate bargaining
unit appropriate under the statute if they so wish. E. H.
Koester Bakery Co., Inc., 136 NLRB 1006 (1962). 1 find,
as alleged in the complaint, that all the truckdrivers em-
ployed at the Respondent's Lisbon, Ohio, strike facility,
excluding all mining equipment operators, all mechan-
C & W MINING CO., [NC
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ics,2 all office clerical employees, and all professional
employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for bargaining.
C. Majority Status; Refusal To Grant Recognition
A second important question in the case is whether,
when the refusal to bargain occurred, the Union in fact
represented a majority of the employees in the appropri-
ate bargaining unit. The prounion movement started on
September 27, when Quetot, one of the drivers, got in
touch with Joseph O'Donnell, the Union's special repre-
sentative, to ask for help. In consequence a meeting of
employees with O'Donnell was held in a restaurant on
September 28, a Thursday. While the testimony varied, it
is clear that seven or eight, maybe more, employees met
with him and signed authorization cards then. Cards
were also passed around among employees at work.
O'Donnell scheduled another meeting for the evening of
Sunday, October 1. The drivers were working that day
and were very rushed, because a principal customer,
Ohio Edison, 50 miles distant from the mine, was in
urgent need of coal. With many of them gathered there
to make deliveries, the men became more and more dis-
gruntled about the pressure of the job, and having to
work on Sundays; they therefore decided to strike all to-
gether then and there. Quetot quickly got in touch with
O'Donnell, who advised them all to meet with him right
away at a restaurant not far from the Respondent's loca-
tion. The men came, with their trucks. With the decision
to strike being firm, O'Donnell told them to return the
trucks to their proper parking place on the Company's
premises. At the restaurant more of the employees signed
union cards. As soon as the trucks were in place, still
during that morning, the employees set up a picket line.
It remained there continuously for 4 days-Sunday,
Monday, Tuesday, and Wednesday. And on the picket
line, still on October 1, more employees signed union
cards.
During that Sunday morning, Earl Manning, a vice
president, on behalf of the Company had a confrontation
with the pickets. It was O'Donnell who spoke to him on
behalf of the employees. Later in the evening, William
Catlett, president and sole owner of the Company, ar-
rived, and again spoke to O'Donnell as the employees'
representative. That the Respondent, speaking through
Manning and Catlett, rejected O'Donnell's direct demand
for exclusive recognition as bargaining agent is so clear
on this record that it would unduly lengthen this Deci-
sion to set out the minutiae of the irrelevant testimony.
Of the 22 and 23 employees then working in the unit,
only 3 crossed the picket line and entered the plant for 3
full days. Not a single truck moved Sunday, Monday, or
Tuesday. The picket line was manned continuously by 12
or more strikers.
The parties stipulated at the hearing, via a document
received in evidence, that 23 persons, all named in the
exhibit, were employed in the unit as of October 1, 1978.
They are in disagreement as to two others, one of whom
the General Counsel would add, and one of whom the
Respondent would add. A number of signed union cards
2 NL.R.B. v. Overland Hauling. Inc., 461 F.2d 944 (5th Cir. 1972)
were placed in evidence, each a clear and unequivocal
authorization for the Union to bargain on behalf of the
employee forthwith. Of these, 18 are signed by emloyees
whose names appear on the stipulated list of included
employees. Of these 18 cards, 9 are dated September 29,
1978; 6 are dated September 28; 1 is dated October 1;
and I is dated October 2. The last is undated. Further, 17
of these signed cards name the employer as C & W
Hauling and one as C & W Mining.
There is a confusion in the testimony relating to the
signing of these cards that requires comment. In substan-
tive reality these men work for William Catlett, who
alone owns and has always owned the entire business.
For years he operated under the name C & W Mining.
Early in 1978 he had his lawyer form a second corpora-
tion called C & W Hauling. He said at the hearing that
this second corporation never functioned in any sense,
that it never did business as such. Without really coher-
ent explanation, he spoke of it being used for recording,
for tax purposes. Vice President Manning spoke of all
the records of the second corporation as being just a
"piece of paper." As best I can understand the owner
was saying that he wanted to keep a separate record as
to the cost of the delivery part of his business, to be
more certain how much it cost to deliver coal in compa-
ny-owned trucks, whether this was or was not profitable.
Sometimes, Catlett said, he did keep records in the name
of C & W Hauling, sometimes he did not. But it is a fact
that the drivers were told to write the name C & W
Hauling on their logsheets when they recorded the var-
ious delivery runs for which they were paid; and they
did that. But the men were always paid by check for
their services and the checks were always in the name of
C & W Mining.
In consequence of this confusion created by the Re-
spondent and implanted in the minds of the employees
by the use of two corporate names, an unusual situation
resulted when it came to signing union cards. When the
employees first filled in the cards and signed them-some
at the union meeting of September 28, many during the
next day at various locations, and some when they met
with O'Donnell at the restaurant before returning their
trucks to the yard on October -they wrote C & W
Mining as their employer. Long working for that Com-
pany as a name, and still being paid by its checks, it is
not surprising that the employees should do that. The
cards were funneled into O'Donnell's hands, and when
everybody arrived at the yard he had about 20 of them,
as he testified. But at that moment the question of the
correct identification of the employer came up-was it C
& W Mining or was it C & W Hauling? At one point,
immediately after the group's arrival, O'Donnell spoke to
Manning, then in charge of the plant, and said, "These
fellows have all signed a union card"; among other
things Manning answered he had no authority to extend
recognition. He also said, according to the uncontradict-
ed testimony of O'Donnell and consistent with the Re-
spondent's position at the hearing:"You don't have a ma-
jority of C and W Mining." O'Donnell responded to this
with: "I don't need C and W Mining Company. I got all
your truckers."
C & W MINING CO., INC, 277
Beginning that very morning O'Donnell had all the
strikers sign new cards in order to correct the name of
the employer to C & W Hauling. He said, and in the
total posture of this case I certainly believe him, that all
employees who had signed the earlier cards signed re-
placements during the first 2 days of the strike, October
I and 2. He destroyed the incorrectly written ones.
Many of the employees, instead of dating their new
cards October 1 or October 2, wrote September 28 or
September 29, the date when they had filled out the
original authorizations. The result of this unusual devel-
opment is that a number of employees, while testifying
that they had signed the particular cards bearing their
signatures, and which were received in evidence, said
they had signed them on the day appearing on the card
in evidence, September 28 or September 29. What they
were saying, of course, is that they had authorized the
Union on the earlier dates, albeit the proof lay in the sig-
natures appearing on the replacement cards. And this is
equally true of the testimony of other employee wit-
nesses who said they saw certain other employees put-
ting their signatures on authorization cards. They said
they saw the other men signing that card, again the one
received in evidence. In some instances they were not
sure on what date they witnessed the other man's signa-
ture; in others they said it happened on the date now ap-
pearing on the card. But they too were thinking only of
the act of signing-whether it was on September 28 or
September 29, or on October I or 2.
It is at bottom a question, as it always is in 8(a)(5)
cases, of proving affirmatively that at the time of
demand and refusal the claiming union was authorized
by a majority of the employees. A Board election is the
best way. Clear and unequivocal authorization cards also
serve the purpose. See N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575 (1969). This does not mean, however,
that there cannot be another way. Prior representation
status is one; an expired contract is still another. Here
the cards put in evidence, although predated here and
there, in the total circumstances also prove contempora-
neous majority. It was the Respondent's confusing use of
an unexplained alternative corporate title that brought
about the double signing in the first place. Not a single
truck moved during the first 3 days of the strike. A clear
majority of the employees walked the picket line
throughout this entire period. With O'Donnell telling
management again and again during those days that he
had a majority of cards signed, can there be any doubt a
majority had in fact authorized the Union to speak on
their behalf, surely by the latest October I or October 2?
I think not. The refusal to extend recognition was voiced
not only on Sunday, but also on Monday and Tuesday as
well. It therefore matters not whether the corrected
cards were in fact signed during the first 2 days of the
strike. The majority was there at the time of demand and
refusal, and I so find.
The following employees testified directly that they
signed the cards that were received in evidence in their
names: Samuel Adams, Vernon Kubankin, Tyndall
Hewitt, Gary Quetot, and John Dailey. Adams testified
that he personally saw Jack Cochran, George House,
and John Needham sign the cards received in evidence
and bearing the names of those three employees. Quetot
testified that he personally saw Ross McPherson, Robert
Cehrs, Craig Downing, Randall Broomall, Kerry Lewis,
Robert Fickel, and Robert Ross sign the cards received
in evidence and bearing the names of these seven em-
ployees. Dailey testified that he personally handed au-
thorization cards to John Muschweck, Marty Hostetter,
and Wesley Noel, and that each of these employees later
returned the cards to him with their names written on
them. McEwen Manufacturing Company and Washington
Industries, Inc., 172 NLRB 990 (1968).
I find that each of the above 18 employees whose
cards where received in evidence had authorized the
Union to act as their bargaining agent by October 2,
1978, at the latest. I therefore also find that on October 1
and 2, when the Respondent refused to bargain on re-
quest, the Union represented a majority of the employees
in the appropriate unit.3
At the hearing counsel for the Respondent attempted
to prove that the employees who signed all these cards
did not intend the literal meaning of what is written on
them-i.e., direct authorization for immediate bargaining.
He tried to draw admission that they were told the pur-
pose of the cards was solely for an election. The evi-
dence does not support the contention.
Thus, O'Donnell testified that he told the employees
that "they [the cards] were to get an election from the
Labor Board, to get the Labor Board to hold an elec-
tion. We have to have at least one third of the drivers
sign up, and to win that election we had to have at least
51 percent of them .... The only ones who would see
those cards would be the Labor Board unless Mr. Catlett
would agree to recognize the Union, and then we would
negotiate." Adams testified the employees were told the
purpose of the cards was "to join the Union and get rec-
ognition . . . we could use them for an election if we
have to." Dailey recalled O'Donnell saying to the em-
ployees: "If you want the Union sign the cards," and
added, "I just told them if they thought they wanted a
Union, then these were the cards for them to sign."
I find, all things considered, that at the time of demand
and refusal 18 employees then on the payroll had signed
reliable and adequately authenticated authorization cards
seeking immediate representation by the Union. I there-
fore conclude that the Union at that time represented a
clear majority of the employees in the bargaining unit.
D. Unfair Labor Practices Apart From The Refusal
To Bargain
1. Violations of Section 8(a)(1)
When the men appeared at the plant on Sunday the
union agent told Manning, who was in charge," These
fellows have all signed union cards . . . and we were
going to strike .... He [Manning] turned to the men
and said, 'If you don't get up there in the trucks and get
to work, you voluntarily quit."' Manning's version of his
reaction to the strike is that he told all the men, "If you
won't go to work . . . I will give you a direct order to
do it, or as far as I'm concerned you have quit." Catlett
I Snyder Tank Corporation, 177 NLRB 724 (1969 1
C & W MINING CO., INC.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arrived later in the day. In his prehearing affidavit he ad-
mitted O'Donnell told him "he had cards or papers
signed by 20 of my drivers to say they wanted the
union." Catlett did not deny O'Donnell's testimony that
in response to the demand for recognition he said "he
wouldn't sign a union contract on his death bed." In var-
ious forms this idea that if they persisted in the strike the
men ceased being employees of the Respondent was re-
peated a number of times on the picket line the next sev-
eral days. On Tuesday, according to Adams, Catlett
came to the picket line to tell the men "if we wasn't
back to work by 8:00 the next morning, we was fired."
On Tuesday and Wednesday, with the strike still on,
Catlett came to the picket line and distributed paychecks
to several employees-among them were Quetot, Adams,
and Downing, all regular drivers. According to Quetot,
when giving out the checks, Catlett: "Here it is, get the
hell off my property. You don't work here anymore."
Under the established system, paychecks were not due
then, the men having been paid the previous Friday. Cat-
lett did not contradict this testimony.
Deferring for the moment other things that happened
those few days, the complaint alleges that these three
men-Quetot, Adams, and Downing-were discharged
when given these paychecks, and that the Respondent
thereby violated Section 8(a)(3) of the Act. That these
three men, like the rest of the strikers, continued to with-
hold their services because, as a matter of personal
choice, they themselves wanted to refuse to work, could
not be clearer on this record. In fact, it is their repeated
story that the managers never ceased telling them to
come back to work or else. What they were saying is
that the Company wanted them back, and badly. But
most revealing of all is the fact that twice during the
strike-as will appear below-the now so-called dis-
charged employees met with management inside the
plant to discuss under what arrangements they were to
continue to work. When, as a total group, they changed
their minds and offered to return in a body, Respondent
took back each and every one of them, including the
three in question. Downing did not come to work be-
cause, as the General Counsel's own witness testified:
"He didn't even want to come back." When Adams did
not show up on Friday, the day the group returned,
Douglas, the dispatcher, called him on the telephone to
ask was he coming to work or not; when Adams said he
thought he was fired, Douglas answered, "Nobody is
fired." On Monday Adams went to work, and remained
for 3 or 4 months, when he left for unrelated reasons. As
to Quetot, Douglas called him too that Friday night, to
inquire why had he not returned. And Quetot also came
back to his regular job the next workday.
I make no finding on this total record that any one of
these men was in fact discharged either during the strike
or at its termination. See Kerrigan Iron Works, Inc., 108
NLRB 933 (1954), and Floyd Fuel Company, 126 NLRB
453 (1960).
It was a tactical maneuver by the Respondent to put
pressure on the entire group to abandon both the strike
and the Union and to abide by the Company's desire on
all aspects of the dispute. How better to coerce-in the
language of Section 8(a)(l)-employees engaged in per-
fectly lawful concerted activities than to pass the mes-
sage they would be fired if they persist? So far as its de-
terring effect upon the employees is concerned, the em-
ployer's intent-if such it was-never to let them go be-
cause it needs them, is beside the point. There is a differ-
ence between a threat, or promise, to fire a man, without
ever implementing that threat, and actively discriminat-
ing against the man-to quote the language of Section
8(a)(3). I shall therefore recommend dismissal of this alle-
gation of the complaint.
I find, however, that by the entire strategy of telling
the employees they would be considered as "quits" if
they did not abandon the strike, by giving them their
paychecks when not due in ordinary course, and by Cat-
lett's outright statement that the men were fired for strik-
ing, the Respondent effectively threatened to inflict an il-
legal discrimination upon them, and thereby violated
Section 8(a)(l).
Beginning Monday morning, and for several continu-
ous days, Catlett, sometimes alone and sometimes with
Douglas and Manning, came out to talk to the pickets in
groups. He always called them away from O'Donnell
whenever the union agent was also at the picket line. He
talked about a number of things: what their problems
were, why they were striking, how could he work out a
settlement with them, the danger of their jobs being lost
if they persisted in the union idea, etc. That Catlett did
this is not really disputed, for his denials are oblique,
wholly partial, evasive, and not really conflicting with
the testimony of the employees in a substantive sense.
The major idea, according to the employees who testi-
fied about these talks, was that Catlett proposed they
meet with him to work out some kind of an arrangement
to put an end to the dispute, get everybody back to
work, and forget about the Union.
The next significant part of what Catlett did, in terms
of the complaint, was to invite the strikers to meet with
management inside the building-with no union agent
present-promise them some measure of satisfaction of
their demands, and persuade them to to establish an em-
ployee bargaining committee to deal with him as a sub-
stitute for having any outside union represent them. Cat-
lett testified all this was the strikers' idea, but his own
man, Manning, gave him the lie. The best statement of
what happened was given by employee Adams. Accord-
ing to him, "Bill Catlett and Earl Manning and Hertzel
Douglas came down and they wanted to talk to the driv-
ers and see what the problem was. They wanted to set a
meeting. They didn't want Joe O'Donnell to be present
.... And he [Catlett] wanted to try and find out what
the problem was, without having the Union .... He
said no way he would recognize the Union. He said he
would sell the trucks within six months if he had to rec-
ognize the Union." Adams said this was Monday morn-
ing and that there were about 20 strikers gathered while
the managing agents said these things, including the dis-
patcher, Douglas.
Adams continued that on Tuesday, again on the picket
line, "Bill Catlett and Earl Manning and Hertzel was
down there that morning and they wanted to set up a
meetig . . . to find out the ones that wanted to smooth
things out, straighten things with the Union .. .. They
C r W MINING CO., INC. 279
wanted us to come up and have a meeting with them; all
the employees . . . up at the garage, the dispatcher's
office." The meeting took place at 4 o'clock that after-
noon. All the drivers were present while Catlett and
Douglas ran the meeting. Adams continued to testify
that Catlett said, "All we needed was a three-man com-
mittee to work out our differences." and that they dis-
cussed "job security, wages, holidays, down time" with
the employees.
He said there was no problem with job security
Q. Was there any mention of the three-man com-
mittee in connection with job security?
A. Yes. He said the three-man committee would
take care of that. Three men would go in, and you
know, we could talk over between him and the
three-man committee to straighten everything out, if
there were any problems. . .. If somebody was dis-
charged or had some days off, it could go through
the committee and the Company together, straight-
ening things out .... He said some of the rates for
the longer hauls he could go a little bit on .. .. He
said there was no problem with hours .... No
paid holidays. He couldn't afford to pay us holidays
Q. Did Mr. Catlett say anything about the Union
at that meeting?
A. He said no way we would recognize the
Union, and he said he didn't believe in unions.
Apparently the matter was left hanging at that point, and
the men returned to the picket line. It was later that
evening that Catlett was back on the picket line and said
"if we wasn't back to work by 8:00 the next morning, we
was fired."
A second meeting took place on Thursday, again
inside the building, with Catlett and Douglas present.
"They wanted to tell us, go over our problems and tell
us what Bill Catlett wanted to go over our problems,
and like negotiate, and he wanted to elect a three-man
committee and told us to come back to work." Again
there was talk about "job security, wages and vacations,
paid holidays." "It was all pretty well the same as the
other, except he was guaranteeing us five loads a day to
Stratton, from 7:00 to 7:00 .... On some of the longer
hauls, he said he would give us a little bit more on that
.... He would give us $5 an hour for breakdown time,
but he doesn't give us anything for waiting time, just
down time."
The next day, Friday, all the employees returned to
work. On October 12 they were all called on their CB
radios and told to come to a meeting to elect three com-
mitteemen. In the dispatcher's office that day, with
Douglas conducting the meeting, they nominated six
men and elected three, with Douglas counting the bal-
lots. The committee then drew up a list of demands and
2 days later presented it to Catlett and discussed it with
him. The result was written up in a three-page docu-
ment, received in evidence without objection. It details a
great number of conditions of employment, some restric-
tions upon employees, and some changes to their advan-
tage. There is no need to list them all here. Suffice it to
say that, among the changes agreed upon, were a
number of increases in monetary benefits.
As stated, Catlett said, at the hearing, it was the em-
ployees who gave birth to the idea of meeting with him
without the Union, and even of setting up the three-man
committee. But he did admit talking with the employees
on the picket line, "asked why this was happening . . .
asked questions . . . I went back quite often . . . asking
them what the problems were." Again from his testimo-
ny: "I thought it was something that could be settled
within a few days, and that the best thing to do, rather
than aggravate the other drivers with three or four going
ahead working, I thought we could go back and see if
we could work things out."
Douglas did not testify, so that what the employees
quoted him as saying and doing stands uncontradicted.
And Manning's testimony, coming after Catlett's, is con-
sistent with that of the drivers. The employee meetings
were held in the garage somewhere. "Mr. Catlett was
back. He wanted us to go with him to the picket line to
get the drivers to come up, and said if they didn't, and
there was four of us that went down and asked the men
to come up to the garage, and they wanted to bring their
union representative with them, we wouldn't have them
come up with the representative, and they said the repre-
sentative, and Mr. Catlett said did you have an election,
and they said that they didn't need one. He said that
they had to have an election."
Q. Was it your testimony that you and Mr. Cat-
lett and Mr. Douglas and Mr. Crawford invited the
men to come up to the garage for the meeting
during the early days of the strike?
A. Yes.
Q. Who suggested to the employees that they go
hold the meeting?
A. Mr. Catlett asked us to go down with him.
Q. And Mr. Catlett raised the idea of the meeting
with the employees, isn't that correct?
A. That day, yes.
Q. The employees refused to come to the meet-
ing without Mr. O'Donnell initially, didn't they?
A. That's right.
On this total record, I credit the testimony of Adams
and other employee witnesses who gave like testimony,
against the denials, however expressed, by the defense
witnesses. I therefore find that by interrogating employ-
ees about their interests in the Union, by threatening to
sell his business, by soliciting their grievances, by dis-
cussing their demands with them at that particular time,
by promising them increases in their benefits, and by tell-
ing the employees that the Company would never recog-
nize any union chosen by them, Catlett, as an agent of
the Respondent, violated Section 8(a)(I) of the Act. I
also find that by suggesting the formation of the employ-
ee committee, by assisting in its establishment when he
called the employees to attend meetings inside the plant,
and by negotiating conditions of employment with con-
cessions to the employees in order to induce their aban-
donment of concerted activities, the Respondent violated
Section 8(a)(l) and (2) of the Act.
C & W MINING CO, INC.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Other allegations of unfair labor practices
In classic language a lengthy paragraph of the com-
plaint says the Respondent "discriminated against em-
ployee Samuel Adams by assigning him to a more ardu-
ous or less agreeable job" because he took part in the
strike. What is said to prove this charge is that when he
returned, as did everybody else, at the end of the strike,
Adams was assigned to run truck no. 24, instead of truck
no. , on which he had worked before the strike. Adams
said he understood at the time this was because a man
who had driven through the picket line during the strike
had been assigned to truck no. 1. Adams added truck no.
I "performed better . . . had a bigger horsepower," and
therefore was "more desirable." "I like truck no. 1 better
than no. 24." About 10 days later Adams was again
asked to drive truck no. 1.
Without comment, I will dismiss this allegation of the
complaint.
Another precise allegation of the complaint is that on
or "about" October 22 the Respondent "advertised for
sale and/or sold some of its trucks," without "notifying
and/or bargaining" with the Union, and thereby commit-
ted diversified unfair labor practices. I am not sure I un-
derstand what facts these alternative statements are in-
tended to set out. Be that as it may, it is a fact that 3
months after the strike, in January 1979, Catlett sold 2 of
his 30 trucks to a company that had long been doing
contract hauling for him and already had 8 trucks on the
road. Catlett said, and no one disputed his statement, that
none of the drivers lost any work because of that par-
ticular sale. There were only about 24 of them anyway.
It is also a fact, again as revealed by the testimony of the
Respondent's witnesses' uncontroverted testimony, that
the Respondent has long considered the possible advis-
ability, as an economic move, to cease doing its own de-
livery hauling by selling all its trucks to some other haul-
ing company. This possibility was discussed with other
hauling companies as far back as 1977, and continued
into 1978 and early 1979. The Company advertised to-
wards this objective but nothing came of its efforts.
I do not think these facts warrant a finding that by
such activity the Respondent did anything violative of
the Act. The fact that Catlett threatened to sell his haul-
ing business as a technique to coerce the drivers away
from their prounion resolve is one thing. It was illegal to
have made such threats and those unfair labor practices
have already been found. But it does not follow that, by
continuing to explore possible changes in its operations
as it had been doing long before the union activity start-
ed, an employer commits an unfair labor practice. Cer-
tainly getting rid of 2 trucks, when there are 28 left, and
nobody's work opportunities are affected, can hardly be
called a discrimination in employment.
That the Respondent refused to recognize the Union
as bargaining agent is also a fact so clear on this record
that it needs no further proof. Another way of saying
this is that it refused to accord the Union a voice in how
the Company was going to carry on its business in those
aspects which affect the employees' conditions of em-
ployment. Having rejected the Union altogether, of
course everything it did thereafter was unilateral. If sell-
ing two trucks without notifiying and/or bargaining with
the Union was a unilateral act and therefore a further
unfair labor practice, why not also list in the complaint
the added money it gave to drivers for such things as
waiting time, etc. Once it has been found that the initial
refusal to recognize was unlawful, every jot and tittle of
what it then goes on to do unilaterally can also be called
a refusal to bargain. But how is the nature of the case
changed by such pointless trivia? If instead it is found
the employer had a right to deny recognition in the first
place, could the fact that it held firm to that position by
acting unilaterally-and selling two trucks-lead to any
other conclusion, or to an independent finding of a viola-
tion of Section 8(a)(5)? When, if ever, the Respondent
does sell its trucks, and in fact "goes out of business" and
discontinues this part of its operations, it will be time
enough to determine whether its purpose was to "chill"
unionism among its employees. Cf. Textile Workers Union
of America v. Darlington Manufacturing Co., 380 U.S. 263
(1965).
The complaint states, and restates, in unending lan-
guage, multiple repetitions of the same kind of illegal ut-
terances by management agents. The General Counsel's
brief even alleges further detailed violations of the stat-
ute that appear nowhere in the complaint. No useful pur-
pose would be served by unduly extending this Decision
with discussion of matters which would call for no
change in the remedial order that is required. The Re-
spondent must be ordered to bargain with the Union, and
the sooner the end object of the statute is achieved,
where the record demands it, the better.
3. The discharge of Quetot
Quetot worked for a year and a half as a driver before
his discharge. A principal activist in the union campaign,
he successfully solicited about 15 signatures to union au-
thorization cards. As set out above, after being called by
phone on Friday, the day the strike ended, he resumed
working the following morning. He testified that on Oc-
tober 3, while the strike was still in progress, Catlett
spoke to him on the picket line: "He told me I was the
one that was behind the Union. He said, 'I will get to
you. It might take six months or a year, but I will get
your ass.... Drop the union, get rid of it and come
back to work. There won't be another word said about
it. We will forget it ever happened."' Quetot also testi-
fied that on Monday, his first day back at work, Catlett
said to him: ".... he knew about Neal's Restaurant
that day .... The first meeting that we had with Mr.
O'Donnell.... He said he knew the men who was up
there and stuff, who was present at the meeting with Mr.
O'Donnell."
Early in January, Quetot was having some kind of
kidney trouble and took time to go to a hospital. He told
Douglas, the dispatcher at that time, he would have to
be "on light duty," and Douglas said it would be
"Okay." A few days later, January 5, Quetot did not feel
well, and as he was returning from his third run of the
morning to Stratton, a regular delivery, Douglas called
him on the CB radio and told him his next run would
have to be to Painesville, a greater distance from the
depot. Quetot answered he was not feeling well, his back
was bothering him, and he would appreciate it if Doug-
C & W MINING CO., INC. 281
las sent someone else there instead. At this point in their
radio talk, still according to Quetot, another driver, Al-
exander, cut in and told Douglas on his CB radio that, if
Quetot did not want to go to Painesville, he would like
to take it. Douglas told Alexander not to worry about it
because he had already dispatched Quetot who was
going. The Painesville run paid more than the Stratton
deliveries. When Quetot got back to the terminal with
his truck empty, he again asked Douglas would he not
send Alexander to Painesville in his place because he
was not feeling well, but the dispatcher refused the re-
quest. When Quetot insisted on not taking the longer
run, repeating that he did not feel well and wanted to go
home, Douglas discharged him. The driver went home.
That evening Quetot telephoned Douglas and asked
was he really fired; the dispatcher said yes. The next
morning, when Quetot came in for his paycheck as in-
structed by Douglas, he asked would it help if he
brought in a doctor's certificate to prove his illness, but
Douglas would have none of that.
The following related facts are clear on this record,
for Douglas did not testify. The dispatcher knew as a
fact that Quetot had been having health problems; short-
ly before he had been to a hospital for treatment and
brought to Douglas the insurance forms necessary for
payments. All drivers are entitled to 13 days of leave an-
nually for sick absences; Quetot was entitled to at least 3
more days as of January 5. There had been others who
had refused to accept certain delivery assignments, but
they had only been suspended or passed over with no
discipline at all. There had been occasions when other
drivers had become ill during the day and left for the
day. And it is a fact Quetot told Douglas the other run
was too much for him because he was not feeling well,
and for no other reason. Anderson, who did testify, ad-
mitted-after some prodding-that this is precisely the
reason Quetot stated to Douglas on the CB radio.
As to Quetot's testimony that the president of the
Company, Catlett, threatened to discharge him during
the heat of the union activity, I credit him. Catlett's den-
ials were vague, and considering his general demeanor
and the total story, I do not credit him where he is con-
tradicted by the employee witnesses. As I put all this to-
gether, and add the Respondent's clear overall opposi-
tion towards the Union and its adherents, I am con-
vinced, and I find, on the record as a whole, that the Re-
spondent discharged Quetot because of his union activi-
ties and thereby violated Section 8(a)(3) of the Act.
THE REMEDY
The Respondent must be ordered to offer Quetot com-
plete reinstatement and to make him whole for loss of
earnings. It must also be ordered to cease and desist from
committing the kind of unfair labor practices it has been
carrying on and even to stop violating the statute in any
other manner.
I find merit in the General Counsel's contention that
the employer's unfair labor practices in this case were so
outrageous and pervasive as to preclude any rational ex-
pectation that a fair election among the employees can
possibly take place in the foreseeable future. Catlett told
every one of the employees, that week in October, he
would fire them all if they did not give up on the idea of
being represented by a union. In any event, he did not
discharge them, but that was only because, within a
matter of days, his threat came home and the employ-
ees-all of them-did exactly what he told them to-
give up the Union and let him run the show in total dis-
regard of his statutory obligation. If there remained any
doubt in their minds about Catlett meaning what he said
when promising not to sign a union contract even on his
deathbed, it was clearly dispelled when 3 months later he
fired the ringleader exactly as he had threatened to do
during the strike. Certainly there can be no better proof
of the deadliness of his illegal conduct than the reality of
all the men meekly submitting to his contrary will. If
ever the phrase-a respondent enjoying the fruits of his
unfair labor practices-fits, this is it. I do not think the
clearly revealed coercive effects of this Respondent's
unfair labor practices can be eliminated by application of
traditional remedies. See N'L.R.B. v. Gissel Packing Co..
Inc., supra. The Respondent must therefore be ordered to
bargain now with the Union.
THE EFIFECrs OF THi UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of Respondent described in section 1, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCIUSIONS 01: LAW
1. By refusing to bargain on request with Fraternal As-
sociation of Special Haulers, Local 100, the Respondent
has refused, and is refusing, to bargain with that Union
within the meaning of Section 8(a)(5) of the Act.
2. By discharging Gary Quetot for engaging in union
activities, the Respondent has engaged in, and is engag-
ing in, unfair labor practices within the meaning of Sec-
tion 8(a)(3) of the Act.
3. By proposing to its employees engaged in union ac-
tivity that they form an employee committee, by assist-
ing such an employee committee in its establishment in
order to bargain with the employer apart from any
union, and by negotiating conditions of employment with
such a company-sponsored employee committee, the Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(2) of the
Act.
4. By all of the foregoing conduct, by threatening to
discharge employees for striking and/or for engaging in
union activities, by interrogating employees about their
interest in a union, by threatening to sell its business, by
soliciting grievances from employees, by discussing their
demands with them while they are engaged in union ac-
tivities, by promising increases in benefits to dissuade em-
ployees from prounion activities, and by telling employ-
ees that the employer would never recognize any union
chosen by them, the Respondent has engaged in, and is
C & W MINING CO., INC.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in, unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
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:
ORDER 4
The Respondent, C & W Mining Co., Inc. and/or C &
W Hauling Co., Inc., Lisbon, Ohio, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain, on demand, with the Union
with respect to any terms and conditions of employment
within the appropriate bargaining unit. The bargaining
unit is:
All truck drivers employed by the Respondent at
its Lisbon, Ohio, facility, excluding all mining
equipment operators, all mechanics, all office cleri-
cal employees, and all professional employees,
guards and supervisors as defined in the Act.
(b) Proposing to employees engaged in union activities
the formation of an employee committee to bargain with
their employer, assisting in the establishment of such an
employee committee, or negotiating conditions of em-
ployment with its employees through such a company-
sponsored employee committee.
(c) Threatening to discharge employees for engaging
in a strike or in union activities, interrogating employees
about their interest in a union, threatening to sell its busi-
ness, soliciting grievances from employees engaged in
union activities, individually discussing union demands
with employees then engaged in union activities, promis-
ing increases to employees to dissuade them from union
activities, or telling employees that the employer would
never recognize any union chosen by them.
(d) Discharging or in any other manner discriminating
against its employees because of their union activities.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the right to self-
organization, to form, join, or assist labor organizations,
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
to bargain collectively through representatives of their
own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all
such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon demand, recognize Fraternal Association of
Special Haulers, Local 100, as the exclusive representa-
tive of all employees included in the bargaining unit
found appropriate above, and bargain with that Union in
good faith, and, if an understanding is reached, embody
it in a signed agreement.
(b) Offer Gary Quetot immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges.
(c) Make that employee whole for any loss of pay or
any benefit he may have suffered by reason of the Re-
spondent's discrimination against him with interest there-
on to be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).5
(d) Preserve and, upon 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 re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its plant in Lisbon, Ohio, copies of the at-
tached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by its representatives,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by it to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
5 See, generally, Isis Plumbing Heating Co., 138 NLRB 716 (1962).
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."