Carbonex Coal Co.

National Labor Relations Board - Board Decisions

Mar 28, 1980

248 N.L.R.B. 779 (N.L.R.B. 1980)

CARBONEX COAL COMPANY 779
Carbonex Coal Company and United Mine Workers
of America. Cases 16-CA-7964' and 16-CA-
8116
March 28, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 28, 1979,2 Administrative Law
Judge J. Pargen Robertson issued the attached De-
cision in this proceeding. Thereafter, Respondent
and the Charging Party filed exceptions and sup-
porting briefs, the Charging Party filed a brief in
support of the Administrative Law Judge's Deci-
sion, and Respondent filed an answering brief to
the Charging Party's exceptions.
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 and
briefs and has decided to affirm the rulings, find-
ings,3 and conclusions of the Administrative Law
Judge as modified herein, but not to adopt his rec-
ommended Order.
Both Respondent and the Charging Party have,
in conjunction with their exceptions, presented a
number of motions relating to evidentiary matters
as well as the Administrative Law Judge's recom-
mended remedy and Order. We dispose of such
motions as follows.
1. The Charging Party's "Motion To Reopen the
Record and Take Official Notice of Certain Por-
tions of the Proceedings" in Case 16-UC-98, a pro-
ceeding involving the parties hereto, is denied. In
our view, the evidence sought to be introduced is
cumulative in nature and, in any event, would have
no impact upon our decision on the merits of the
instant case. See Section 102.48(d)(1) of the Nation-
' Cases 16-CA-7964 and 16-CA-8116 were part of a consolidated
complaint which was issued on November 18, 1978. That consolidated
complaint also included Cases 16-CB-1507 and 16-CC-609. At the con-
solidated hearing, on December 7. 1978, the Administrative Law Judge
approved a settlement agreement in Cases 16-CB-1507 and 16-CC-609,
and granted a motion to sever those cases from Cases 16-CA-7964 and
16-CA-8116.
2 The Administrative Law Judge's Decision inadvertently indicates
that such Decision was issued on September 28, 1978.
3 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Productrs
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We are also satisfied that Respondent's contention that the Administra-
tive Law Judge was biased is without merit. In our opinion, there is
nothing in the record to suggest that his conduct at the hearing or his
evidentiary and procedural rulings were based on either bias or prejudice
248 NLRB No. 107
al Labor Relations Board Rules and Regulations,
Series 8, as amended.
2. The Charging Party's motion to strike is
denied in part and granted in part. Those portions
of the motion seeking to strike various of Respon-
dent's exceptions for failure to comply with the
provisions of Section 102.46(b) of the Board's
Rules and Regulations, Series 8, as amended, are
denied. Although certain of Respondent's excep-
tions and its brief in support thereof do not con-
form in all particulars with the Board's Rules and
Regulations, they are not so deficient as to warrant
striking.
That portion of the Charging Party's motion
seeking to strike the factual allegations of Respon-
dent based on Respondent's Exhibits 10, 16, and 20
is denied. Although the Administrative Law Judge
refused to accept Exhibits 10, 16, and 20 into evi-
dence, Respondent did except to those evidentiary
rulings. Having done so, it is proper for Respon-
dent to present arguments predicated upon such ex-
hibits. 4
That portion of the Charging Party's motion
seeking to strike certain of Respondent's factual as-
sertions as being unsupported by record testimony
is denied. In our review of the record, any factual
assertions presented by a party which are not sup-
ported by competent evidence are accorded no
weight in our consideration.5
That portion of the Charging Party's motion
seeking to strike Respondent's references in its brief
to Respondent's Exhibits 18(a), 18(b), 12, and 22
and all factual assertions based thereon is granted.
Respecting Respondent's Exhibits 18(a) and 18(b),
such exhibits were stricken by the Administrative
Law Judge. Respondent did not except to that
ruling and, thus, cannot now rely on those exhibits.
As for Respondent's Exhibits 12 and 22, Respon-
dent at no time sought their introduction into evi-
dence. Therefore, Exhibits 12 and 22 were not
made part of the record and cannot now be relied
upon by the parties or considered by the Board.7
' We are not unmindful of the Charging Party's contention, in this
regard, that our consideration of Resp. Exhs. 10, 16, and 20 would be
improper since the General Counsel and the Charging Party were not ac-
corded a full opportunity to cross-examine witnesses concerning the ex-
hibits in question. That particular contention is addressed at fn. 10, infra,.
in connection with our ruling on the admissibility of the exhibits.
6 That portion of the Charging Party's motion seeking to strike Re-
spondent's reference to Appendix F of Respondent's brief for failure to
serve such appendix on the parties is denied as moot. In the documents
submitted to the Board by Respondent, Appendix F was not included.
Respondent has informed the Executive Secretary for the Board and the
parties by letter dated February 25, 1980, that an Appendix F was not
submitted, but was instead included as part of Appendix E. Thus, we are
not in receipt of any documents which have not been properly served on
all the parties hereto.
See ALJ's D, fn. 1.
7 The record reveals that Exhibits 12 and 22 were marked for identifi-
cation A controversy arose, however, over the necessity of Respondent
Continued
CARBONEX COAL COMPANY
__
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. We find merit in Respondent's exception to
the Administrative Law Judge's refusal to accept
into evidence Respondent's Exhibits 10, 16, and 20.
Essentially, the exhibits represent monthly summar-
ies assertedly reflective of Respondent's efficiency,
productivity, and profitability for the months sub-
sequent to the time when Respondent claims it
made the decision to lay off the 18 employees
found by the Administrative Law Judge to have
been laid off in violation of Section 8(a)(3) of the
Act. The Administrative Law Judge refused to
accept the summaries into evidence, reasoning that
since the information contained in the summaries
was not available to Respondent at the time it
made the decision to lay off employees, such infor-
mation could not be relied on by Respondent in
seeking to establish that the layoffs were motivated
only by economic considerations. We find, howev-
er, that the legitimate concerns expressed by the
Administrative Law Judge bear more upon the
weight to be accorded the evidence in question
than upon the initial issue of its admissibility.
The principal issue to be addressed in determin-
ing admissibility of evidence is one of relevance,
i.e., whether the proffered evidence is probative of
a party's claim or defense. 8 As noted above, Re-
spondent's defense to the 8(a)(3) allegations is that
the layoffs were motivated only by economic con-
siderations. Thus, even though the information con-
tained in the exhibits in question was not available
to Respondent at the time it made the layoff deci-
sion and, therefore, could not have been relied on
by Respondent in making its decision, we find that
the information is probative of the legitimacy of
Respondent's assertion that the only motivation for
the layoffs was to improve Respondent's economic
situation.9 Therefore, Respondent's Exhibits 10, 16,
and 20 should properly have been admitted.
Having found that Respondent's Exhibits 10, 16,
and 20 are admissible evidence, we nevertheless
find, upon consideration of the exhibits and Re-
spondent's arguments based thereon,10 that the ex-
supplying the Charging Party and the General Counsel with the underly-
ing documents used to compile Exhs. 12 and 22. The Administrative Law
Judge ruled that, until such steps were taken to verify the accuracy of
the exhibits, they would not be accepted into evidence. The record does
not reveal clearly whether those steps were taken.
8 Rule 401, Fed. R. Evid., defines relevant evidence as "evidence
having any tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or less probable
than it would be without the evidence."
9 The Board has. in the past, examined economic developments subse-
quent to allegedly discriminatory discharges in determining the legitima-
cy of a respondent's asserted economic defense. Ryder Truck Rental, Inc.,
135 NLRB 53, 60 (1962).
"i As noted above, see fn. 4, upra, the Charging Party asserts that we
may not properly consider Resp. Exhs 10, 16, and 20 since the General
Counsel and the Charging Party were not fully able t cross-examine
witnesses concerning the disputed exhibits. In view of our finding that
the exhibits in no way affect the propriety of the Adnministrative Law
hibits do little to further Respondent's defense and
do not undermine the propriety of the Administra-
tive Law Judge's finding that the layoffs took place
in violation of Section 8(a)(3). This is so because,
even viewed in the light most favorable to Respon-
dent, the exhibits serve to show only that Respon-
dent's financial and productivity situation improved
somewhat following the layoffs," but do not es-
tablish that Respondent conducted the mass layoffs
based only on economic considerations.
In the instant case, the General Counsel has pre-
sented what can easily be termed an overwhelming
case of discriminatory motivation on the part of
Respondent. In this regard, the record is replete
with uncontroverted threats by foremen, superin-
tendents, and the mine president to employees that
a union victory in the election would result in sub-
stantial layoffs, as well as curtailment or cessation
of mine operations. The layoffs then took place in
the days immediately following the Union's elec-
tion victory. Several employees were told at the
time of their layoffs that they were being let go be-
cause of the union victory while not a single em-
ployee was told that the layoff was because of Re-
spondent's economic situation. The credited testi-
mony of the former mine superintendent also re-
veals that Respondent's upper level management
kept track of which employees supported the
Union, determined that massive layoffs would best
serve to destroy the Union, and that Respondent's
asserted economic justifications were the result of
knowing and calculated fabrication. In the face of
these findings of the Administrative Law Judge
and the other evidence of wrongful motivation out-
lined in his Decision, Respondent's claimed eco-
nomic upsurge, standing alone, can hardly be
viewed as an effective rebuttal of the General
Counsel's case and does not serve to establish Re-
spondent's assertion that the layoffs were motivat-
ed only by economic considerations.
4. We find merit in the Charging Party's excep-
tion which asserts that its certification year should
Judge's Decision, we find it unnecessary to pass on this assertion, We do
note, however, that the record does contain a substantial amount of evi-
dence concerning Respondent's economic situation after the layoffs and
the reasons therefor.
I1 We do note, however, that Respondent's claim of increased profits
and productivity is somewhat diminished by a variety of other factors,
For example. increases in productivity must at least in part be attributed
to improved weather conditions and the benefits derived from the sub-
stantial "blasting ahead" program which greatly facilitated removal of
stone overburden. The alleged increase in productivity per man-hour is
similarly colored by the fact that Respondent reduced its number of em-
ployees but at the same time utilized subcontractors. Thus, production
levels could be maintained while direct man-hours of Respondent's em-
ployees were reduced. Respecting costs, and therefore profitability, the
better weather allowed the use of cheaper and lesser quantities of explo-
sives. Cost reductions were also the result of the "blasting ahead" pro-
gram since the blasting costs had already been attributed to earlier
months and incurred costs related only to the removal operation.
CARBONEX COAL COMPANY 781
be extended to 1 year from the time Respondent
commences to bargaining in good faith. Lawrence
Textile Shrinking Co., Inc., 235 NLRB 1178, 1179
(1978). We shall so provide in our remedy.
5. The Charging Party's request for an order di-
recting Respondent "to repay Charging Party for
all litigation expenses incurred in investigation,
preparation, presentation and conduct of this pro-
ceeding" is denied. An award of such expenses is
appropriate only when a respondent raises "patent-
ly frivolous defenses." Neely's Car Clinic, 242
NLRB No. 69 (1979), citing Tiidee Products, Inc.,
194 NLRB 1234 (1972). Although we find Respon-
dent's defenses here to be without merit, we are
unable to conclude that they constitute patently
frivolous defenses.
6. Pursuant to certain of our rulings herein and
in order to clarify portions of the Administrative
Law Judge's recommended remedy, we shall grant
the following remedy in lieu of that recommended
by the Administrative Law Judge.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the Act, we shall order that
it cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act. Having found that Respondent, in viola-
tion of Section 8(a)(5), has engaged in surface bar-
gaining and has otherwise failed in its obligation to
bargain in good faith, we shall, in order to insure
that the employees in the appropriate unit will be
accorded the services of their selected bargaining
agent for the period provided by law, construe the
initial period of certification as beginning on the
date Respondent commences to bargain in good
faith with the Union as the recognized bargaining
representative in the appropriate unit. 12
Having further found that Respondent laid off
and has thereafter refused to reinstate Junior A.
Berry, Ed Davenport, Derrell L. Jordan, Jimmy E.
Legates, Charles F. Lewis, James M. Lewis, Jerry
D. Magness, Wayne M. Moore, Rex Daniel
Rymer, Paul D. Pinkston, James Presfield, Howard
W. Robinson, Roy J. Stephenson, William R.
Swick, Hooley G. Thompson, Howard M. Timms,
Mark W. Walker, and Pete Triplett in violation of
Section 8(a)(3) and () of the Act, we shall order
Respondent to offer the above-named employees
immediate and full reinstatment to their former po-
sitions or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and
12 Lawrernw Texrile Shrnnkira i Co, Inc.. ul-ra. and ases cited at fn 7
thereiln
make them whole for any loss of earnings they
may have suffered as a result of the discrimination
practiced against them.
We have further found that the strike which
began on October 2, 1978, was an unfair labor
practice strike from its inception. Accordingly, we
shall order that Respondent offer the strikers, upon
their unconditional applications to return to work,
immediate and full reinstatement to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority and other rights and privileges,
dismissing, if necessary, persons hired on or after
October 2, 1978, and to make them whole for any
loss of earnings they may suffer as a result of Re-
spondent's refusal, if any, to reinstate them in a
timely fashion by paying to each of them a sum of
money equal to that each would have earned as
wages during the period commencing 5 days after
the date on which each unconditionally offers to
return to work to the date of Respondent's offer of
reinstatement, less any net earnings during such
period. The Board has found that the 5-day period
is a reasonable accommodation between the inter-
ests of the employees in returning to work as
quickly as possible and the employer's need to ef-
fectuate that return in an orderly manner. 13 Ac-
cordingly, if Respondent herein has already reject-
ed, or hereafter rejects, unduly delays, or ignores
any unconditional offer to return to work, or atta-
ches unlawful conditions to its offer of reinstate-
ment, the 5-day period serves no useful purpose
and backpay will commence as of the uncondition-
al offer to return to work. 4
Having further found that Respondent, on Octo-
ber 2, 1978, terminated and has thereafter refused
to reinstate William Robinson, Edward Williams,
and Lester Robinson, Jr., in violation of Section
8(a)(1) of the Act, we shall order the Respondent
to offer the three above-named employees immedi-
ate and full reinstatement to their former positions
or, if those positions no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or other rights privileges, dismissing, if
necessary, persons hired on or after October 2,
1978, and to make them whole for any loss of earn-
ings they may have suffered as a result of the dis-
crimination practiced against them.' 5
I': Drug Package Company, Inc , 228 NLRB 108 (1977). Member Jen-
kis., for the reasons set forth in the partial dissent in Drug Package Corn
pan). Inc.. would begin Respondent's backpay obligation from the date of
each striker's unconditional offer to return to vi rk
" Aplit iVe', Shiphuiddin ad Drr Drok ( ,mpany 2 N RB 1637
' h Abdile and (;odmwil. Inc., 241 NLRB No 5 (1')79), enforcement
denled oi: oither grounds 103 LRRM 2029, 87 LC 111,753 Ist Cir 19791
I:.r lihe rea Tis stated in his di,scnl in Abilrtie rand Govxdwill. Inc..
C'ontinucd
CARONEX COAL COMPANY !
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In each of the above instances where backpay is
appropriate, such backpay and interest shall be
computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).16
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Carbonex Coal Company, Tulsa, Oklahoma, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, in violation of Sec-
tion 8(a)(1) of the Act, by threatening its employ-
ees with mine closure because of the employees'
union activities; by interrogating its employees
about their union activities; by creating the impres-
sion of surveillance of its employees' union activi-
ties; by soliciting grievances of its employees in
order to discourage the employees' union activities;
by soliciting employee assistance in determining its
employees' willingness to form a company union;
by informing its employees it would be futile to
support the United Mine Workers of America; by
directing its employees to remove union stickers
from their helmets; by threating its employees with
termination of employment because of their union
activities; by soliciting its employees to support an-
other labor organization or a company union; and
by promising its employees economic benefits in
order to discourage their union activities.
(b) Laying off and terminating its employees and
refusing to reinstate them because of their protect-
ed concerted activities or their union activities.
(c) Refusing to bargain in good faith with United
Mine Workers of America, as the certified collec-
tive-bargaining representative of the employees in
the following described unit:
All production and maintenance employees, in-
cluding truck drivers, employed by Respon-
dent at its mining operation near Chelsea,
Oklahoma, excluding all other employees, coal
processing and loading employees, office cleri-
cal employees, guards and supervisors as de-
fined in the Act.
(d) Subcontracting its hauling operations to a
greater extent than its subcontract operations exist-
ed prior to June 20, 1978, and refusing to employ
Member Penello would begin Respondent's backpay obligation from the
date that each of the three above-named employees submitted an uncon-
ditional offer to return to work.
Io See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
its own employees in its hauling operations, with-
out negotiating with the Union.
(e) In any other 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 which is
deemed to be necessary to effectuate the policies of
the Act:
(a) Bargain in good faith with the aforesaid labor
organization, upon its request, as the exclusive rep-
resentative of the employees in the above-described
appropriate unit, and embody in a signed agree-
ment any understanding reached.
(b) Offer immediate and full reinstatement to
Junior A. Berry, Ed Davenport, Derrell L. Jordan,
Jimmy E. Legates, Charles F. Lewis, James M.
Lewis, Jerry D. Magness, Wayne M. Moore, Rex
Daniel Rymer, Paul D. Pinkston, James Presfield,
Howard W. Robinson, Roy J. Stephenson, William
R. Swick, Hooley G. Thompson, Howard W.
Timms, Mark W. Walker, and Pete Triplett to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
earnings they may have suffered as a result of the
discrimination practiced against them in the manner
set forth in the section of this Decision entitled
"The Remedy."
(c) Offer the unfair labor practice strikers, upon
their unconditional applications to return to work,
immediate and full reinstatement to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority and other rights and privileges,
dismissing, if necessary, persons hired on or after
October 2, 1978, and make them whole for any loss
of earnings they have suffered or may suffer as a
result of the discrimination practiced against them
in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(d) Offer immediate and full reinstatement to em-
ployees William Robinson, Edward Williams, and
Lester Robinson, Jr., to their former positions or, if
those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges, dismissing, if
necessary, persons hired on or after October 2,
1978, and make them whole for any loss of earn-
ings they may have suffered as a result of the dis-
crimination practiced against them in the manner
set forth in the section of this Decision entitled
"The Remedy."
CARBONEX COAL COMPANY 783
(e) Reestablish its own hauling operations to the
extent those operations existed prior to the June 20,
1978, election.
(f) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(g) Post at its Rogers Mine near Chelsea, Okla-
homa, copies of the attached notice marked "Ap-
pendix."' 7 Copies of said notice, on forms pro-
vided by the Regional Director for Region 16,
after being duly signed by Respondent's representa-
tive, 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. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 16,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
l? In the event that this Order is enforced by a Judgment of a United
Staltes 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an op-
portunity to present evidence and cross-examine
witnesses, the National Labor Relations Board has
found that we violated the National Labor Rela-
tions Act, as amended, and has ordered us to post
this notice.
WE WILL NOT threaten to close the mine be-
cause our employees engage in activities on
behalf of United Mine Workers of America, or
any other labor organization.
WE WILL NOT interrogate our employees
about their union activities.
WE WILL NOT create the impression that we
are engaged in surveillance of our employees'
union activities.
WE WILL our employees to determine if
other employees would prefer a company
union to the United Mine Workers of Amer-
ica.
WE WILL NOT solicit grievances from our
employees in order to discourage their union
activities.
WE WILL NOT inform our employees it
would be futile to support the United Mine
Workers of America, or any other labor orga-
nization.
WE WILL NOT our employees to remove
union stickers on their clothing.
WE WILL NOT threaten to discharge or lay
off our employees because of their union ac-
tivities.
WE WILL NOT solicit our employees to sup-
port an independent union or a labor organiza-
tion other than the United Mine Workers of
America.
WE WILL NOT promise our employees eco-
nomic benefits in order to discourage their
union activities.
WE WILL NOT discharge or lay off, and
refuse to reinstate or otherwise discriminate
against, our employees because they engage in
protected concerted strikes or activity on
behalf of a labor organization.
WE WILL NOT refuse to bargain in good
faith with United Mine Workers of America,
as the certified collective-bargaining represen-
tative of the employees in the following de-
scribed unit:
All production and maintenance employees,
including truck drivers, employed by Car-
bonex Coal Company at its mining operation
near Chelsea, Oklahoma, excluding all other
employees, coal processing and loading em-
ployees, office clerical employees, guards
and supervisors as defined in the Act.
WE WILL NOT subcontract our hauling oper-
ations to a greater extent than such operations
existed prior to June 20, 1978, or refuse to
employ our employees in our hauling oper-
ations, without negotiating with the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL bargain in good faith with the
aforesaid labor organization, upon its request,
as the exclusive representative of the employ-
ees in the above-described appropriate unit,
and embody in a signed agreement any under-
standing reached.
WE WILL offer immediate and full reinstate-
ment to Junior A. Berry, Ed Davenport, Der-
rell L. Jordan, Jimmy E. Legates, Charles F.
CARONEX COAL COMPANY
..........
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lewis, James M. Lewis, Jerry D. Magnes,
Wayne M. Moore, Rex Daniel Rymer, Paul D.
Pinkston, James Presfield, Howard \V. Robin-
son, Roy J. Stephenson, William R. Swick,
Hooley G. Thompson, Howard M. Timms,
Mark W. Walker, and Pete Triplett, to their
former positions or, if those positions no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
other rights and privileges, and WE WILL make
them whole for any loss of earnings they may
have suffered as a result of the discrimination
we practiced against them, plus interest.
WE WILL offer the unfair labo:r practice
strikers, upon their unconditional applications
to return to work, immediate and full reinstate-
ment to their former positions or, if those posi-
tions no longer exist, to substantially equiv-
alent positions, without prejudice to their se-
niority or other rights and privileges, dismiss-
ing, if necessary, any persons hired on or after
October 2, 1978, and make them whole for
any loss of earnings they may have suffered or
may suffer as a result of the disc rimination
practiced against them, plus interest.
WE WILL offer immediate and full reinstate-
ment to employees William Robinson, Edward
Williams, and Lester Robinson, Jr., to their
former positions or, if those positions no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
other rights and privileges, dismissing, if neces-
sary, any persons hired on or after October 2,
1978, and WE WILl. make them whole for
any loss of earnings they may have suffered as
a result of the discrimination we have prac-
ticed against them, plus interest.
WE WILI. reestablish our hauling operations
to the extent those operations existed prior to
the June 20, 1978, election.
CARBONEX COAL COMPANY
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This case was heard on December 6, 7, 11, 12, 13, 14, 15,
18, and 19, 1978, and on January 10, 11, 12, 15, 16, and
17, and February 6, 1979, at Tulsa, Oklahoma. The
charges in Case 16-CA-7964 and 16-CA-8116 were filed
by the United Mine Workers of America, herein the
Union, on June 29, 1978, and October 2, 1978, respec-
tively. Case 16-CA-7964 was amended on three occa-
sions on July 5 and 10 and August 4, 1978. The charges
in Cases 16-CB-1507 and 16-CC-609 were filed on Oc-
tober 10, and 19, 1978, by the Company. A consolidated
complaint issued in Cases 16-CB-1507 and 16-CC-609
on November 13, 1978.
The consolidated complaint alleges that Respondent
Carbonex Coal Company (hereafter called Respondent in
view of the settlement of the cases against the Union)
violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended, by threatening its em-
ployees with various action because of their support of
the Union, by laying off a number of employees, and by
engaging in surface bargaining. The allegations against
the Union included Section 8(b)(3) and 8(b)(4)(i) and
(ii)(A) of the Act by insisting to impasse on contract pro-
visions prohibited by Section 8(c) of the Act. A settle-
ment agreement was approved in Cases 16-CB-1507 and
16-CC-609 and a motion to sever those cases from the
consolidated complaint was granted.
Upon the entire record' and from my observations of
the witnesses, and after due consideration of the briefs
filed by General Counsel, Respondent, and the Union, I
hereby make the following:
FINDINGS AND CONCIUSIONS
The Evidence
Respondent is engaged in surface mining of coal at
various mines in northeast Oklahoma. The mine involved
in these proceedings is one located in Rogers County
near Chelsea, Oklahoma. 2 In the spring of 1978, Respon-
dent's employees at the Rogers mine became interested
in representation by the United Mine Workers of Amer-
ica. 3 A representation petition was filed pursuant to
which an election was held on June 20, in which a ma-
jority of the employees cast valid ballots designating the
Union as their bargaining representative. On June 28, the
Union was duly certified.
The complaint alleges that numerous 8(a)(1) violations
occurred during the union organizing campaign and after
the June 20 election; that Respondent laid off 18 employ-
ees after the election because of its employees' union ac-
tivities; and violation of Section 8(a)(5) by Respondent
engaging in surface bargaining and various other bar-
gaining violations. On October 2, 1978, the employees
struck Respondent's Rogers mine. The picketing stopped
during November 1978. However, the facts failed to
show that the Union has ended the strike or made an un-
conditional offer for the employees to return to work.
A. Calendar of Events
During February 1978, the Union started an organiz-
ing campaign at Respondent's Chelsea, Oklahoma, mine.
The Union's motion to strike which wsas filed on June 11 is granted
to the extent that I will not consider as evidence Resp. Exhs 18(a) and
18(b). hose exhibits were not received during the hearing. Itoweser, as
to, the remainder of the Union's motion and the entirety of Respondent's
motion to strike, which was received on July 19, those motions are
denied. I view the materials which tle two parties seek to strike to con-
stitute nothing more than portions of their briefs and they will be consid-
ered as argument but not as eidenlce in the case.
a Jurisdiction is not in issue. The complaint alleges, the answer as
amended admits. ad I find that Respondent meets the Board's standards
for the assertion of jurisdiction.
:' The complaint alleges, the answer as amended admits, and I find that
the Union is a labor organization as defined in the Act.
_ A .
CARBONEX COAL COMPANY 785
The campaign culuminated in an NLRB election on June
20, 1978, among employees in the unit:
All production and maintenance employees, includ-
ing truckdrivers, employed by Respondent at its
Chelsea, Oklahoma mining operation.
The Chelsea mine which is located in Rogers County
was referred to as the Rogers mine or, occasionally, as
the Chelsea mine. Following institution of the organizing
campaign there followed a chronology of events which
led to this litigation. 4
1. March
On March 20, Mine Superintendent Jim Smith talked
to employee James Presfield about the union campaign.
Smith said, "Frank Podpechan 5 had heard rumors of a
union." Smith appeared concerned that he would lose his
job. Presfield asked, "What would Mr. Podpechan do if
it did go union?" Smith replied, "He would shut it
down."
Subsequently, between March 20 and the June 20 elec-
tion, Smith and Presfield had frequent conversations
about the Union. During one of those conversations
Presfield asked Smith why the title to the vehicles was
all in the name of Chaparral. Smith replied that "all the
equipment was under the name of Chaparral. Carbonex
didn't even own a paperclip, so that they could shut it
down if it went union."
2. April
On April 15, Pit Foreman Diacon told employee
Wayne M. Moore that he already knew about the Union,
that he had heard about it before Moore told him.
Superintendent Jim Smith, during the period of time
between the last of April and the first of June, talked
with employee Jerry D. Magness at the Stagecoach
Tavern in Chelsea. Smith told Magness that the equip-
ment belonged to Chaparral, that Carbonex was not any-
thing but just the people working there, and if the Union
came in Frank Podpechan would probably just shut the
mine down. Smith told Magness that the truckdrivers
probably started the instigation of the Union.
During late April or early May, employee Presfield
was called into a meeting with Vice President Richard
Growitz, Superintendent Smith, and Respondent Attor-
ney Richard Barnes. Presfield was called into the meet-
ing to determine the employees' feelings toward the
Union. Presfield stated that the employees felt Frank
Podpechan had lied to them about a raise and that they
felt two of the foremen treated the employees with fa-
voritism. Presfield said "that if a vote was taken that
day, that they would probably go union." After Presfield
left the meeting, Smith was directed by Growitz and
Barnes to let the employees know there were alternatives
to the United Mine Workers Union. Smith was told not
to volunteer anything about the alternatives unless the
employees brought up the Union in discussions with him
i Unless otherwise noted, evidence supporlting the following incidents
stands undenied
Respondentl's president
Chaparral is a sister corporation *,f (arb';illex
or any of the pit foremen. If that occurred, the employ-
ees were to be told that either the Operating Engineers7
or an independent union were alternatives to the UMW
and that Podpechan would negotiate with an indepen-
dent union.
3. May
On May 1, Supervisor Paul Minnick8 asked employee
William Swick if Swick had signed a union card. Swick
said no, and asked Minnick what it was. Minnick ex-
plained and told Swick he should not sign one.
On May 7, a Sunday, Swick talked with Superinten-
dent Smith at the mine. The Union was discussed and
Smith said "if the Union came into the mine, they would
shut the mine down and they would bring in construc-
tion companies to haul the coal-remove the coal from
the ground and process it." Smith showed Swick a finan-
cial statement from March which indicated Carbonex
was making a profit at the Rogers mine.9 Smith told
Swick, "Petroleum Resources' ° had the land and Chap-
arral Productions had all the equipment. That everything
had been charged to these two." Smith also showed
Swick business cards of three construction companies
and said "one of these companies would come in and
move the coal."
On May 8, Frank Podpechan spoke to an assembly of
employees. Podpechan said he had heard rumors about
the Union and he wanted to know what the problems
were. None of the employees replied. Podpechan said, "I
feel it would make everyone more comfortable if I
would remove the supervisors." The supervisors then left
the meeting. Podpechan then said, he felt that if the men
would get together and talk to him-have a committee
to get together with him and tell him what the problems
and complaints were-that he felt that they could work
them out. Podpechan said he was not supposed to say
anything about the Union, but "he felt that most of the
problems were in management and stuff that could be
worked out if we would get a committee of men to talk
to him."
Following Podpechan's meeting with the employees,
Podpechan talked with employee Wayne M. Moore.
Podpechan asked Moore if he had any problems and
what Moore's problems were. Podpechan said he be-
lieved Moore was in favor of the Union. Podpechan said
]he Operating Engineers represents some of Respondent's employees
al other mines. including the "Porunm" mine.
The record demonstrates and I find that Minnick was a supervisor
and agent of Respondent at all times material. Respondent stipulated that
all those alleged as supervisors were in fact supervisors and agents with
the exception of Minnick and Antone Hopper. Both Minnick and Antone
Hopper (who was identified to employees as the vice president in charge
of maintenance) directed employees in their work Hoth were held out as
supervisors by management. Richard Groswitz admitted during his testi-
mony that Minnick was a supervisor during June 1978 1 find that
Hopper and Miniick were agents of Respondent at all times material.
9 Approximately I or 2 weeks before his conversation with Smith,
Swick had been told by Frank Podpechan that the Rogers mine was not
making a profit.
" A sister corporation of Carhonex
CARHONEX COAL COMPANY
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union was not the answer: "The Union is no good-
all they do is grab your money and run."
On May 11, Wayne M. Moore attended a meeting in-
volving employees and Frank Podpechan at the Cattle-
man's Restaurant. Podpechan told the employee that he
would not work under the United Mine Workers. Podpe-
chan said they had the Operating Engineers at Porum
and that he would recognize the Operating Engineers or
he would be agreeable to an independent union.
Superintendent Jim Smith testified that on May II,
prior to an NLRB representation case hearing, a meeting
was held in Growitz' office which included Attorney
Barnes, Superintendent Smith, Vice President of Sky Re-
sources' Bill Preacher, and Growitz. The "general
tenor" of the discussion was Carbonex would be broken
up, done away with, if the employees voted in the
Union. Preacher said they were going to form a compa-
ny called Petroleum Reserve Resources which would be
a wholly owned subsidiary of Petroleum Reserve Corpo-
ration and they would own the oil and coal leases so that
Carbonex would have no control over any coal whatso-
ever. Barnes and Growitz identified the truckdrivers as
the troublemakers and union organizers and they intend-
ed to get them out of Carbonex. The tipple operators
were also identified as union organizers. Barnes men-
tioned "the Dixie-Tipple Corporation" which would be
formed "to haul the coal and process it and load it for
Carbonex." Barnes said, "That if it went UMW, which
they could not negotiate with, that these-that Carbonex
Coal could be dissolved. These other corporations were
merely corporate officers, which could not be organized,
and had no people or laborers. We could hire an inde-
pendent contractor to come in and mine coal leases for
Petroleum Resources reserved and lease equipment. The
coal could be hauled by the Dixie-Tipple Corpora-
tion."' 2
Later on May 11, at the NLRB hearing Growitz,
Barnes, and Smith were talking. Barnes asked the Hear-
ing Officer if he had heard anything about Lonestar Op-
erations. The Hearing Officer replied no but that he had
heard that the independent contractor who was taking
out the coal for Lonestar Steel had hired some previous
Lonestar miners and that the Mine Worker; was claim-
ing jurisdiction. Barnes then turned and said to Growitz,
"Don't you make that same silly mistake and hire back
any people."
On May 12 or 13, employee Presfield had a conversa-
tion with Superintendent Smith. Smith said he had talked
with Podpechan and some of the others in reference to
getting a company union, and he wanted to know how
the men felt about it. Smith told Presfield that, since he
was one of the working men, he felt that Presfield could
talk to them better. Presfield admitted that hie did go out
and talk to some of the employees about a company
union and that he reported back to Smith that the men
were cool on the idea, but that some of them had open
minds. Presfield suggested to Smith that he set up a
meeting between the men and Frank Podpechan to dis-
11 The parent corporation. owner of Carbonex and ils sister corpora-
tions.
12 The parties stipulated that the tipple operation was sold to a compa-
ny named Chelsea-Tipple Corporation in August 1978.
cuss the company union. Smith called but Podpechan
was out. However, Smith talked to Growitz on the
phone in Presfield's presence. Presfield testified that
Smith told Growitz, "Dick, they are believing this shit
about me getting fired, and I think they will go for the
company union now."
Smith testified to a May 13 conversation with Podpe-
chan. Podpechan told Smith that it was his "intention to
come over Monday morning and fire me, but he was sur-
prised that the men liked and" respected Smith. Podpe-
chan said he felt that, as mine superintendent, Smith was
responsible that the men were unhappy and were want-
ing to form a union. Podpechan said, "We are going to
work this out. We cannot negotiate with the UMWA
and I will not. If they want to form an independent
union or belong to Operating Engineers, I will discuss it.
I will absolutely not negotiate with the UMWA." Podpe-
chan also told Smith "to inform the men that if they
formed an independent union, that he would sit down
and negotiate with their representative. Or if they
wanted to appoint representatives from the different
group, like the drivers and the operators and so forth, he
would meet with them at any time and discuss this possi-
bility. But if they voted UMWA, that Carbonex would
shut down" (and Smith) and they would be out of work.
On May 13, Podpechan told Smith he wanted the
"Peabody" tipple cleaned up so he could move "the
troublemakers, those truckdrivers and tipple operators
out of there and make it separate."
Employee Paul Pinkston testified to four conversations
he had with Foreman Lonnie Wassom between May 15
and June 20. Pinkston asked Wassom what he thought of
the Union. Wassom said it was no good and he opposed
it. Pinkston testified that during each of the conversa-
tions Wassom said that Podpechan had said he would
close the mine if the employees went union.
In late May Growitz, Podpechan, and Smith met.
Smith testified that Podpechan stated that the reason that
the UMW was interested in the Carbonex operation was
because it was the largest mine in that immediate area.
Podpechan said he wanted to cut the number of employ-
ees to 30 employees, that the UMW would not have
gone after the mine if they had limited the number of
employees to 30 or less. Podpechan wanted to immedi-
ately lay off sufficient employees to reduce the work
force to 30. However, Smith advised Podpechan to wait
until after the election and Podpechan agreed. Podpe-
chan also mentioned that he had "toyed" with another
idea of making each pit a separate mine so that each
mine would have a limited number of employees and
that way they would be separately operated and in dif-
ferent company names so as not to be a target for a
union organization. 3
:a Podpechan did not specifically deny Smith's testimony regarding
this late May conversation. Podpechan testified that he did not recall a
conversation between himself, Growitz. and Smith regarding the layoff. I
was impressed with Smith's demeanor. He appeared straightforward and
candid when responding to questions from all parties. In large measure
his testimony regarding matters other than his opinion of mining oper-
ations was uncontested I credit Smith's testimony regarding the late May
conversation.
CARBONEX COAL COMPANY 787
4. June
In late May or early June, Pit Foreman Bill Rogers
was asked by employee William Robinson what he
thought about the Union and what would happen.
Rogers answered, "Frank Podpechan would shut down
before he would sign a contract."
Employee Jerry Magness was told by Superintendent
Smith that Carbonex had ordered two new haul trucks
for June delivery. The haul trucks transport the coal
from the mine to the tipple where it is loaded for ulti-
mate delivery.
Around June 1, Relief Foreman Bill Rogers had a con-
versation with employees Lester Robinson and Ed Dav-
enport, Jr., regarding the Union. Davenport testified that
he and Robinson asked Rogers how he thought the elec-
tion for the Union was going to go. Rogers replied that
he did not really know but he did know that if the Union
were elected the mine would shut down because he had
known Podpechan some time and Podpechan would
carry through what he had been saying he would do.
Lester Robinson corroborated Davenport's testimony.
On June 1, employee Jimmy Legates was asked by
Foreman Bill Rogers how he was going to vote. Legates
and other employees present told Rogers that they did
not know. Rogers told them if they voted that Frank
Podpechan was going to shut the mine down. Rogers
said they would be laid off and would not have jobs.
Former Mine Superintendent Smith testified that, a
few days before his June 6 termination, Frank Podpe-
chan told him to contact an employee named Bo Bean,
that Bean was interested in starting a company union.
Smith drove over to where Bean was working and told
Bean "that Mr. Podpechan had asked him to get a group
of men together to try to form a company union."
On June 5, Jimmy Legates asked Foreman Jim Diacon
if he thought Frank (Podpechan) would shut the mine
down if (the employees) voted Union. Diacon replied,
"Yes, he knew [Podpechan] would. This place isn't
nigger rich like a lot of you guys think it is."
On June 6, Foreman Bill Rogers again asked Jimmy
Legates if he was going to vote for the Union.
Employee Timothy Pinkston testified of a June 6
meeting between employees and Frank Podpechan at a
restaurant near Chelsea. Podpechan told the employees
that job favoritism would stop, that people would be
promoted according to seniority, and there would be
better working conditions. Podpechan said he would not
bargain with the mine workers because of the violence in
strikes. Podpechan said he had one mine under the Oper-
ating Engineers and he felt he should keep all his mines
under that union. On cross-examination Pinkston testified
that he recalled Podpechan saying, "If it went union,
you would not work under me. You would work under
somebody else."' 4
William Swick testified that Jim Smith asked him, on
June 6, "Bill, would you please remove those [union]
stickers [from your helmet] just for me." According to
Swick, Frank Podpechan also made a statement about
" Podpechan admitted telling his employes, "If you choose to join the
United Mine Workers, you will choose to have no coal mine because of
economic reasons."
the union stickers Swick was wearing on his helmet on
June 6. Podpechan said, "Aren't you about two weeks
early?"
Employee Hooley Thompson testified that, on June 6,
Richard Growitz asked him what he thought of the
Union. Thompson said he had not given it much
thought. Growitz asked how he was going to vote.
Thompson answered that he did not know. Growitz
asked what he thought of an independent union. Thomp-
son replied that he did not think much of it.
Frank Podpechan talked with Jerry Magness about 2
weeks before the June 20 election. Podpechan asked
what he thought about Jim Smith being terminated.
Magness replied that he did not like it. Podpechan asked
what he thought about the Union. Magness told Podpe-
chan that it looked like the Union would go in. Podpe-
chan said that he culd probably live with a private
union or just "our own union or Operating Engineers,"
but that he just could not afford to operate under the
UMWA; that he would just have to close the mine
down.
During a June 6 conversation with Foreman Rogers,
Jimmy Legates was told by Rogers, "If we vote he
could tell us boys how it was going to be. That he used
to be the pit foreman at Porum for Podpechan and if we
voted the Union in he'd do us the same way he'd done
Porum. Laying them off and thinning them out. Just
gradually fading away to nothing."
On June 8, Wayne Moore asked Foreman Diacon if he
thought that Frank (Podpechan) would shut the mine
down if it went union. Diacon replied, "Yes, he probably
would shut it down."
On June 10, Growitz said to William Swick, "I don't
know if you are the union organizer." Swick replied,
"Well, I don't know if I am the union organizer or not,
but I'm going to vote for the Union on the 20th." Fol-
lowing that Growitz told Swick, "You should consider
your future." Growitz admitted he may have made the
above statements to Swick in joking.
On June 13, James Presfield asked Richard Growitz
where he stood with Frank and with the Company.
Growitz replied, "As long as a man did his job it didn't
make any difference what he had said or done." Presfield
told Growitz he had signed a union card. Toward the
end of the conversation Growitz said, "Carbonex cannot
afford UMWA."
On June 14, Foreman Jim Diacon asked employee
Erick Long how the Union was doing.
James Presfield testified that, on June 15, the vice
president in charge of maintenance, Antone Hopper,
took him a side and asked, "I want to know-I have
heard that you were a union organizer, and I want to
know why. I want to know why you would be so stupid
to organize something that was going to cost you your
job? Safety men are always on the company side." The
following day, June 15, Presfield asked Hopper if the
Company was still mad at him. Hopper said he had
heard around the office that they were mad at Presfield
and Presfield was going to be fired.
The record contains several references of antiunion
speeches by Growitz and Podpechan on June 19, the day
before the election. Ed Davenport testified that Growitz
CARBONX COAL COMPANY
788 DECISIONS OF N'ATIONAL LABOR RELATIONS BOARD
was the principal speaker. Davenport recalled that
Growitz said the Company could not see any way that
they could operate with the United Mine Workers repre-
senting the men-that they could not pay the royalty on
the coal that the Mine Workers wanted. Growitz said
the men at the Porum mine had received a tonnage
bonus and that the Rogers mine could come up with a
"likewise plan" (tonnage bonus) by bringing in the Oper-
ating Engineers or forming an independent union.
Growitz pointed out some financial statements indicating
the Company had been operating at a loss for about 6
months. One employee, William Swick, said he had seen
papers showing the mine was operating at a profit.
Growitz said he would be glad to go over the papers
with Swick after the meeting. Davenport said Frank
Podpechan also talked at this meeting. Podpechan said
that the employees might be able to get along with the
UMW, but that "he couldn't and wouldn't." Davenport
said that Growitz told the men that the Company could
simply recognize the Operating Engineers if the employ-
ees wanted or they could form an independent union by
choosing a board or group of men that would represent
them.
Timothy Pinkston testified that Growitz said Rogers
employees would be getting $150 more per month begin-
ning the following month. Pinkston recalled Podpechan
saying that he would accept either the independent union
or the Operating Engineers but that he would not bar-
gain with the Mine Workers.
William Swick testified that Growitz told them, "If
[you] don't bring in the United Mine Workers and we
went for the independent union, they were prepared to
initiate a tonnage bonus system-or some kind of a wage
bonus system in the amount of $150 a month."
Erick Long remembered Growitz telling the employ-
ees that "they could give us a $150 more for the Compa-
ny union." Long recalled Podpechan saying that "he
wouldn't work with the UMWA."
Richard Growitz testified that he read a prepared text
to the employees on June 19. The text was received in
evidence. However, Growitz, when asked if he respond-
ed to questions from employees, answered, "Doggone if
I know. I may have. I really don't know." Subsequently
Growitz testified in detail regarding William Swick ques-
tioning his claim the Company was losing money. Then
in response to a question from Respondent's attorney,
Growitz testified that he said nothing that afternoon
other than what was contained in his written speech and
his response to William Swick. 5
Employee Lester Robinson testified that he was ap-
proached by Frank Podpechan about 2 hours after the
polls closed on June 20. Podpechan said to Robinson, "It
looks like you voted yourself out of a job." Podpechan
then walked away.
William Swick, in his role of union observer during
the election, challenged the ballot of Foreman Paul Min-
nick. After the election Swick went up to Minnick,
shook Minnick's hand, and said, "No hard feelings,
1' In view of Growitz' varying response to similar questions posed by
Respondent's attorney and the attorney for General Counsel and the
Union, I do not credit his version of the June 19 speech.
Paul." Minnick replied, "There sure is, Bill, there sure
is."
Jimmy Legates testified that he overheard a conversa-
tion between Foreman Bill Hill, Jim Diacon, and Lonnie
Wassom immediately after the election results were an-
nounced on June 20. Hill told Diacon and Wassom,
"The man said get all the equipment in that you can get
in. He's going to fold her up." Legates testified that
Frank Podpechan was known as "the man" around the
mine.
On the day after the election, Hooley Thompson was
told by his foreman to go home, that it was too muddy
and wet to do anything. Later that day he was called by
Respondent's secretary and told not to come back to
work unitl they called him. Thompson testified that
before the election he was never told it was too muddy
or wet to work on days similar to the one after the elec-
tion.
Howard Robinson testified that, prior to the June 20
election, he averaged working 6 to 7 days a week. On
June 20 or June 21, Robinson received a phone call from
Carbonex Coal's secretary, Sandy Hagglebush. Haggle-
bush told Robinson not to report back to work until
called. Hagglebush gave no reason why Robinson was
not to report to work. Robinson stated that he had never
been told not to report to work prior to the election.
Robinson came to the mine on June 23, and was given
one-half day's work moving a drill inside. On June 26,
Robinson asked Mine Superintendent Bill Benesla if he
had been laid off. Benes stated he did not know but that
he ought to know in 2 or 3 days. Approximately 3 days
later Robinson picked up his check and found a dismissal
slip attached to the check. He has never received a
reason for his dismissal.
On June 21, James Presfield asked Bill Benes when the
(negotiation) meetings would start. Benes replied, "Frank
Podpechan does not recognize the UMW, nor will he
ever negotiate with them because you don't have a con-
tract until you negotiate."
Employee Edward Williams testified that Frank Pod-
pechan walked up to him on June 22 and said, "Ed, you
are right. You don't have a job. I won't negotiate under
these conditions." Williams had told Podpechan on June
19, "If the Union doesn't get voted in in a few weeks I
won't have a job anyway."
James Presfield talked with Paul Minnick on June 23.
Minnick told Presfield that, since the Union was voted
in, he was "screwed because he was an old man." Pres-
field asked Minnick what he meant, did he think Frank
(Podpechan) would shut it down. Minnick replied, "I
know damn well he will shut it down."
On June 23, Wayne Moore was told by his foreman,
Jim Diacon, that they were going to run straight through
the weekend. However, later that day, Diacon came
back and told Moore they were taking Ed Lewis off the
third shift and Lewis was going to run Moore's shift.
Diacon told Moore to leave, that they would call him
when they needed him. Moore, who operated a 922
front-end loader, testified that both loaders were operat-
ing that day, June 23.
'6 Jim Smith was fired as mine superintendent in early June 1979.
CARBONEX COAL COMPANY 789
Moore went back to the mine between June 23 and 29,
and talked with Superintendent Bill Benes. Moore asked
Benes, "I guess they didn't run the mine on seniority
anymore-they just worked to kiss asses." Benes "said it
was Ed's [Lewis'] machine and that they were going to
take him [Lewis] off the third [shift] and put him on [the
loader]."
Ed Davenport testified that on June 27, or a couple of
days before that, Respondent moved some of its equip-
ment away from the Rogers mine. Respondent moved a
couple of dozers, all the haul trucks, and the joy drill
and compressor.
On June 28, Superintendent Benes told Jimmy Legates
that Podpechan was decreasing the work force and that
Legates was on the list.17 Legates asked Benes if Podpe-
chan was going to negotiate with the Union. Benes re-
plied, "No [Podpechan] didn't have to talk to them, the
mine workers. If they called [Podpechan] would not talk
to them. There are ways of getting around these things."
Legates said, "Like contracting?" Benes said, "Yes." On
that same day Benes had told Legates that he had con-
tracted the hauling to Flood & Sons Trucking. Legates
asked Benes, "If we hadn't voted for the UMWA and
would have voted for the Company independent union
that they wanted, if we all would have had our jobs."
Benes answered, "Most likely [you] would have all kept
working like [you] were." Benes told Legates that Re-
spondent had moved all their trucks to Porum and that
"Frank [Podpechan] wanted to move the man-o-walk
[dragline] to Porum." Benes said there would probably
be things that they could do with the rest of the mine to
get around the Union. He told Legates that he had a list
of 21 to lay off but that Podpechan could not lay them
all off at once without getting into trouble.
On June 28, employee James Lewis was called into
Mine Superintendent Benes' office. Benes told Lewis that
he was going to lay Lewis off. Benes told Lewis that this
was not something he wanted to do, that the reason for
it was because of the Union trying to come into the
Company. Immediately before his conversation with
17 Respondent admitted in its answer that the following employees
were laid off on the date opposite their respective names:
Benes, Lewis had worked his full shift plus 1-1/2 hours'
overtime on June 28.
On June 29, Ed Davenport was laid off. When Daven-
port reported to work Foreman Bill Rogers told him of
his layoff. Rogers said they were in the process of shut-
ting the mine down and that they were going trhough
the seniority list and laying the third-shift welders off.
Rogers assured Davenport that it was not because of
Davenport's work that he was being laid off. Rogers said
it was because they were in the process of shutting the
mine down and that Mr. Podpechan had told everyone
all along that, if the Union were voted in, he would shut
down the mine and that was what they were in the pro-
cess of doing.
Timothy Pinkston was also laid off by Bill Rogers on
June 29. Rogers handed Pinkston his check soon after
Pinkston reported for work. Rogers said, "Podpechan
warned you boys he would shut it down."
Also on June 29, James Presfield talked with Superin-
tendent Benes regarding layoffs. Benes told Presfield, "I
am going to lay a bunch of men off as soon as I talk to
Frank to decide what to do with the men. They aren't
laid off but they really haven't been working since the
election." Later that day Presfield and Benes had an-
other conversation. Benes said he was going to lay some
more off. Presfield said he hoped he was not one of the
men to be laid off. Benes replied, "You are not today. I
will be strictly honest with you. You will be in the next
few days." Presfield said, "Well, if you are going to lay
me off, why don't you just lay me off with the rest of
the men?" Benes said, "What were you doing at the
union meeting at the park yesterday?" Presfield testified
there had been a union meeting at a park in Allewe the
day before. Presfield was laid off on June 29.
Richard Growitz testified that, within 10 days follow-
ing the June 20 election, Respondent contracted out all
the haul truck operations at its Rogers mine. He testified
that, with the exception of Donald Timms,' 8 every haul
truckdriver was laid off within 10 days after the election.
5. August
In early August employee William Robinson discussed
the Union with Foreman Bill Rogers. Robinson asked
Rogers what he thought of the Union and what was
going to happen. Rogers replied, "I told you guys that if
it went Union that Frank would shut down and lay a
bunch of you guys off."
Negotiation sessions started during August. The Union
was certified as the employees' bargaining representative
on June 28. During August, negotiation sessions between
the Union and Respondent occurred on August 3, 23,
and 24.
a. August 3, 1978, negotiations
(1) Union security
In his letter to the Union dated July 10, Respondent's
attorney stated Respondent's position relative to union
security:
' Timms was an oiler on a dragline at the tine of the hearing herein
Junior A Berry
Ed Daven
Derrell L. Jordan
Jimmy E. Legates
Charles F. Lewis
James M. Lewis
Jerry D Magness
Wayne M Moore
Rex Daniel Rymer
Paul D. Pinkston
James Presfield
Howard W. Robinson
Roy J Stephenson
William R. Swick
Hooley G. Thompson
Howard M. Timms
Mark W. Walker
Pete Triplett
June28
June 29
June 29
June 27
June 28
June 28
June 29
June 23
June 27
June 29
June 29
June 20
June 20
July 14
June 21
June 28
June 28
June 28
CARBONEX COAL COMPANY
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Our client has strong philosophical objections to
any contract that requires a free American to
become a member of any labor organization or any
other group in order to retain his employment. We
have found that the requirement of joining a union
forecloses us from hiring a substantial number of
qualified employees who have personal convictions
strongly opposed to unionism. We simply cannot
afford to eliminate from possible hiring these sub-
stantial numbers of persons.
On August 3, Respondent presented the Union a coun-
terproposal contract. That proposal contained the fol-
lowing provision:
Section 2.1 The parties recognize the right of em-
ployees to belong to or refrain from belonging to a
Union and neither the Company nor the Union shall
discriminate against any employees by reason of
their exercise of these rights.
The parties discussed union security at the August 3
session. The Union's western regional director, Steve
Galati, attended that session as one of the Union's
spokesmen. Galati testified'9 that Mr. Growitz spoke on
behalf of Respondent regarding union security. Growitz
stated that the Company had strong philosophical feel-
ings about the union-security clause and, inasmuch as
they had employees that voted against the Union, he was
going to protect their rights. For no reason would he
enter into an agreement that would bind those employees
to have to belong to a union. Respondent's attorney,
Richard Barnes, suggested there may be a middle
ground, some sort of maintenance of membership. Galati
said he suggested the parties negotiate concerning the
union-security clause but that Mr. Barnes replied no.
(2) Management rights
Respondent's August 3 contract proposal contained
the following:
Article 4
Management
Section 4.1: The provisions of this Agreement,
except as herein expressly set forth and provided,
are not intended, and shall not be understood or
construed, to infringe upon, interfere with, or limit
the exercise by the Company through its; managerial
supervisory officers and employees, of the normal
functions and rights of ownership and management;
including all of the rights, powers, functions and au-
'g I have credited Steve Galati's testimony regarding the negotiation
sessions. I found him a straightforward witness and his testimony was
corroborated by the testimony of Richard Noble. To the extent his testi-
mony conflicts with the testimony of Galati. I have not credited Richard
Barnes. I found Barnes' August 9 letter to the Union (see infra) contained
material misrepresentations and exaggerations which were never ex-
plained. Therefore, I am unable to credit his testimony to the extent it
conflicts with the credited testimony of Steve Galati Although Richard
Growitz testified at length, his testimony did not include the negotiations.
Barnes was Respondent's only witness regarding negotiations. Both
Galati and Noble testified on behalf of General Counsel.
thorities of the Company which it had prior to the
Union becoming the certified bargaining representa-
tive of the Company's employees; nor shall any-
thing contained herein be construed as giving to the
Union any voice or authority with respect to the
conduct, operation and management of the business,
property, or affairs of the Company.
Section 4.2: It is expressly agreed that the Compa-
ny has the sole right to make and enforce such rules
and regulations relating to operations and to mainte-
nance, operation and protection of machinery and
equipment, and to the safety of employees and to
the performance of the work and duties of their em-
ployment as shall not be inconsistent with the ex-
press provisions of this Agreement.
Section 4.3: Among the other rights which the
Company specifically retains (although not intended
as a complete list, and by way of example only) are
the rights to determine the location of the business,
including establishing, relocation and/or closing op-
erations, departments, divisions and/or plants; to
select, hire, promote, transfer, assign, lay off, recall,
or relieve employees from duty; to determine the
means, methods, processes and schedules of oper-
ations and production; to subcontract work and to
arrange for work to be done inside or outside the
plant by others, and by other divisions or affiliates
of the Company; to plan, direct, and control oper-
ations; to schedule and assign work to employees;
to fix, alter, or change the workweek, the work
day, the number of hours of work, the number of
shifts, and the starting and ending time of each, and
make shift assignments; to establish reasonable time
and quality standards within each classification for
each work operation; to terminate, merge or sell the
business or any part thereof, purchase, trade or ac-
quire additional plants, or liquidate, merge, consoli-
date, or dissolve divisions and/or the Corporation;
to determine the continuance of its operating de-
partments; to establish and require employees to ob-
serve reasonable company rules and regulations; to
maintain order and to take disciplinary action for
just cause, which may include, but not be limited to,
oral warnings, written warnings, suspension from
duty without pay, or discharge, as in the Compa-
ny's judgment the case may warrant; to establish
new jobs, abolish, modify, and change existing jobs
and job content; to increase, combine, or separate
job content, or decrease the number of jobs or in-
terchange employees or work as needed; to change
materials, processes, products, equipment, and oper-
ations; to achieve the highest level of employee per-
formance consistent with safety, good health and
sustained effort.
Galati testified that the August 3 discussion concerning
Respondent's management-rights proposal was limited to
his statement to Respondent that the clause was unaccep-
table as it removed from the bargaining table those items
that (the Union) felt were issues that the Union intended
to bargain on.
CARBONEX COAL COMPANY 791
(3) Negotiations and the pending unfair labor
practice charges
Steve Galati testified that, during the August 3 session,
Richard Barnes stated that the unfair labor practice
charges should be resolved as Respondent could not liti-
gate and negotiate at the same time. Respondent's
spokesman stated the layoff had been economic and de-
manded that the Union withdraw the unfair labor prac-
tice charges. Richard Noble responded on behalf of the
Union that, if agreement could be reached, the Union
would talk to the employees that were involved in the
charges and work toward the ends of resolution of those
charges consistent with the Union's duty to fairly repre-
sent those employees.
After the August 3 negotiation sessions the Union
mailed a new contract proposal to Respondent.
b. August 23, 1978, negotiations; negotiations; and the
pending charges
Again, in the August 23 session, Barnes brought up the
pending unfair labor practice charges. Galati recalled
Barnes asking, "What is the Union's position toward
these unfair labor charges? We are going to insist upon
the resolution of these unfair labor charges. Let the
Union get them off the table. We are not going to sit
here and let you use them as a lever to bargaining, and
we demand that you drop them." At the end of the ses-
sion, Growitz remarked, "We still have the ULP charges
hanging over our heads and we cannot and will not liti-
gate and negotiate at the same time."
c. August 24, 1978, negotiations
(I) Management rights
Galati asked Barnes if a reserved-rights clause would
be acceptable to Respondent rather than their proposed
management-rights clause. Barnes replied that for 15
years his firm has consistently rejected management-
rights clauses that contained a reserved-rights doctrine
and he was not at that time going to change one word in
the management-rights clause they had presented. Galati
told Barnes that the management-rights proposal re-
moved from the bargaining table those things that the
Union wanted to bargain for-"it took away the rights
of these people to file grievances on them and all the
other things that were bargainable issues." Galati listed
to Barnes several specific items which he felt the man-
agement-rights clause removed from bargaining, includ-
ing employee discipline, grievances, safety and health,
job rights, job bidding, the assignment of work, subcon-
tracting of work, changing of work hours and shifts and
rules and regulations, and establishment of new jobs.
Galati remarked to Barnes, "You only left out one sen-
tence, the Company will, the Union won't and we will
break your damn arm if you try." Galati told Barnes that
he would submit a counterproposal to the management
clause.
(2) Negotiations and the pending charges
At the end of the August 24 session, Growitz stated,
"We still have the unfair labor charges hanging over our
heads. We will not be able to litigate and negotiate at the
same time."
6. Late August-early September
Foreman Jimmy Diacon told employees William Rob-
inson and Tim Pinkston, in late August and early Sep-
tember, that "Frank [Podpechan] would shut it down
before he would sign a contract."
7. September
The final negotiation sessions occurred on September
14 and 15, 1978.
a. September 14, 1978, negotiations
(1) Management rights
The Union made a counterproposal to Respondent's
management clause:
The management of the mines, the direction of the
working force and the right to hire and discharge
are vested exclusively in the Employer. The Em-
ployer retains each and every right it heretofore
had accept [sic] as it is relinquished by this Agree-
ment.
Respondent rejected the above counterproposal.
Barnes stated that for 15 years his firm had consistently
rejected a management-rights clause that contained the
reserved-rights doctrine.
(2) Successorship provision
The Union's contract proposal would bind the Em-
ployer and its successors. At the September 14 meeting,
Barnes told the Union that he had no intention of ham-
stringing his client's right to sell its property, subcontract
or lease any part of it. Prior to this meeting Barnes had
told the Union that their successorship clause was unlaw-
ful and unreasonable. At the September 14 meeting,
Barnes said he would not hamstring his client from sell-
ing any portion or leasing any portion of the mine.
(3) Mine health and safety
On August 19, the Union submitted a contract propos-
al which included an article on health and safety. The
provision included the establishment of a mine health
and safety committee. The committee would be com-
posed of miners. The provision required training for
members of the committee. The committee's duties were
to include inspections for unsafe or unhealthy conditions
with the right to require the removal of all employees
from a hazardous area. However, a provision of the arti-
cle permitted the removal of an employee from the com-
mittee if the employee's action in closing down an area
was found to be arbitrary or capricious. The article also
provided that union officials would have access to the
mine at the request of management or the mine health
and safety committee. The article provided for coopera-
tion between management and the committee in the de-
velopment of mining plans; it provided for the preserva-
tion of individual employee rights to work under safe
CARBONEX COAL COMPANY
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and healthy conditions; it provided for a procedure to re-
solve disputes concerning unsafe and unhealthy condi-
tions; and it provided for workmen's compensation cov-
erage and settlement of health or safety disputes.
Barnes commented on the Union's safety proposal on
September 14. He told the Union that it was unnecessary
to have all these rights spelled out because all were pro-
vided under OSHA law. Barnes said the Company had
the right to make any rules and regulations over and
above OSHA. Galati asked if it was his intent to imple-
ment these rules and regulations without input from the
Union. Barnes replied that was their intention. Galati
asked, "That excludes our safety committee?''" Barnes re-
plied, "There is no need for a safety committee or a mine
committee at the mine. The Company will handle those
problems. That is a managerial function." Barnes said
they would not negotiate those matters under health and
safety.
b. September 15, 1978, negotiations
(1) Employee appraisals
Respondent informed the Union they were going to
implement an appraisal. Barnes said they would furnish
the Union with a copy of the appraisal form. However,
Galati testified the Union was never furnished a copy of
the form. Respondent spokesman said the Union could
have no input into the appraisal unless and until disci-
plinary measures are taken. If an employee objected to
how Respondent appraised his job, he could take it up
with his foreman or the superintendent, buit the Union
would have no right to intercede or sit in with the em-
ployee.
(2) Negotiations and the pending charges
The Union was told that unless the unfair labor prac-
tice charges were withdrawn, Respondent would have
no time to prepare for the litigation of the cases. They
would have no time to negotiate.
Galati asked Barnes, "Do you mean we are not going
to have any more negotiating sessions?" Barnes replied,
"That is correct." Barnes or Growitz then said, "In the
course of preparation for the litigation of the unfair labor
practice charges if we have a couple of hours during the
day, we will let you know and we will negotiate." Galati
replied, "We [are] prepared and ready to negotiate at
any time, but on a 2-hour notice it would be rather diffi-
cult for me to get from Denver down here and be pre-
pared on such short notice as that." 20
Although the Union has requested negotiations since
September 15, Respondent has refused to meet unless the
Union first makes counterproposals regarding the layoffs.
The employees voted on September 29 to strike Re-
spondent. Prior to the vote the employees discussed the
layoffs and Respondent's bargaining. An employee, Ray
Martin, who had attended one of the September negoti-
ating sessions, told the employees at the meeting that he
believed Respondent was not trying to reach a bargain,
or get a contract. Testimony indicated that the employ-
20 The hearing in this matter had been set for December 6, and the
parties notified before the September 15 session.
ees, during the September 29 meeting, also discussed the
subcontracting of the hauling operations and Respon-
dent's threats to close the mine because of the Union.
8. October
On October 2, a number of Respondent's bargaining
unit employees struck Respondent's Rogers mine. Testi-
mony indicated the picket signs read "unfair labor
strike," or "unfair labor practices."
On October 2, William Robinson returned home and
did not report to work at the Rogers mine because of the
picket line. Foreman Paul Minnick called Robinson's
father and told him to tell Robinson not to come back to
work until they called him. Some 6 or 7 weeks later
Robinson talked to the then mine superintendent, Gallo.
Robinson asked Gallo about going back to work. Gallo
had Robinson fill out a form listing the jobs he could do.
Robinson asked how long it would be before he could
go back to work. Gallo replied, "It would be a few
weeks because we got some legal matters to go
through."
Paul Minnick called employee Edward Dean Williams
on October 2, after the strike started. Minnick told Wil-
liams that he could not return to work until he was
called. Minnick also called Lester Robinson, Jr.'s father
and told him to tell Lester not to return to work until he
was called.
Neither Edward Williams, Lester Robinson, Jr., nor
William Robinson have been recalled since their October
2 layoffs.
Around October 15, Hooley Thompson asked Paul
Minnick how everything was going out at the mine.
Minnick replied, "They didn't have but 8 or 9 men
working-that the Company couldn't afford the Union."
9. November
Some 6 or 7 weeks after October 2, the picket line was
removed at the Rogers mine. Shortly after that, on No-
vember 13, Lester Robinson, Jr., went into the mine and
talked with the mine superintendent, Gallo. Robinson
filled out forms listing what jobs he could perform.
Gallo told him that "they had a lot of legal stuff to go
through before they could call us back."
10. December
During December, Respondent opened a new mine,
the "Defiance Mine." Richard Growitz admitted Re-
spondent intends to move the 4600 dragline and some
other equipment from Rogers to the Defiance mine.
Growitz admitted "a nominal amount of employees"
have been hired for the Defiance mine, and that those
employees are members of Operating Engineers.
B. Conclusions
1. Section 8(a)(l)
General Counsel, in the consolidated complaint and
amendments at the hearing, alleged:2 '
2' Unless otherwise noted the following testimony (under Sec. 8(a)(1))
stands undenied and is credited
CARBONEX COAL COMPANY 793
(a) Respondent, by the following named supervi-
sors, on or about the dates set opposite their names,
threatened to close the Chelsea, Oklahoma mining
operation if the Union was successful in its attempt
to become the collective bargaining representative
of Respondent's employees:
Richard Growitz-June 19, 1978:
Employee Ed Davenport testified 22 that during
his June 19 speech to employees, Growitz said that
the Company couldn't see any way that they could
operate with the United Mine Workers representing
the men-that they couldn't pay the royalty on the
coal that the Mine Workers wanted.
James C. Smith-March 20, several occasions be-
tween mid-April and June 1, and May 7:
James Presfield, an employee, testified that, on
March 20, Smith, in response to his question of
what would Mr. Podpechan do if [the Mine] did go
union, replied, "he would shut it down." Presfield
testified he and Smith had several other conversa-
tions between March 20 and the June 20 election.
During one of those conversations Presfield asked
Smith why the title to the vehicles was all in the
name of Chaparral. Smith said, "Carbonex didn't
even own a paperclip, so that they could shut it
down if it went union."
On May 7, Smith told employee William Swick,
"if the Union came into the mine, they would shut
the mine down and they would bring in construc-
tion companies to haul the coal-remove the coal
from the ground and process it."
Frank W. Podpechan-May 8 and June 6:
Employees James Presfield and Wayne Moore
testified about incidents involving Podpechan on
May 8. However, my examination of their testimo-
ny revealed no statements which could be charac-
terized as a threat to close the mine. Podpechan met
with several employees at a restaurant near Chelsea
on June 6. Podpechan admitted telling the employ-
ees, "If you choose to join the United Mine Work-
ers you will choose to have no coal mine because of
economic reasons." Employee Timothy Pinkston
testified he recalled Podpechan saying, "If it went
union, you would not work under me. You would
work under somebody else."
Lonnie Wassom-Several occasions between May 15
and June 20:
Employee Paul Pinkston testified he had four
conversations with Lonnie Wassom between May
15 and June 20. During each of those conversations
Wassom told Pinkston that Podpechan had said he
would close the mine if the employees went union.
Bill Rogers-June 1, 6, and 29, and August :
22 found Davenport to be a straightforward and candid witness I
credit his version of (irowitz' June 19 speech (See fn 15, supru )
Rogers told employee Jimmy Legates on June 1,
"If (the employees) voted that Frank Podpechan
was going to shut the mine down; the employees
would be laid off and wouldn't have jobs."
On June 6, Rogers told employees Jimmy Le-
gates and Tim Sheers, "If we vote he could tell us
boys how it was going to be. That he used to be the
pit foreman at Porum for Podpechan and if we
voted the Union in he'd do us the same way he'd
done Porum. Laying them off and thinning them
out. Just gradually fading away to nothing."
Rogers told Timothy Pinkston on June 29, "Pod-
pechan warned you boys he would shut it down."
On August 1, he told employee William Robin-
son, "I told you guys that if it went Union that
Frank would shut down and lay a bunch of you
guys off."
Jim Diacon-June 5 and 8:
On June 5, Diacon, in response to employee
Jimmy Legates asking if he thought Podpechan
would shut the mine down if the employees voted
union, said yes, he knew Podpechan would. "This
place isn't nigger rich like a lot of you guys think it
is."
Employee Wayne Moore asked Diacon, on June
8, if he thought Podpechan would shut the mine
down if it went union. Diacon replied, "Yes, he
probably would shut it down."
Bill Hill-June 20:
Shortly after the announcement that the Union
had won the election, on June 20, Hill told two
other foremen in the presence of at least one em-
ployee, "The man said get all the equipment in that
you can get in. He's going to fold her up." Frank
Podpechan was known as the "man" at the mine.
Paul Minnick-June 23:
On June 23, Minnick told employee Presfield that
since the Union was voted in he was screwed be-
cause he was an old man. Presfield asked what he
meant, did he think Podpechan would shut it down.
Minnick replied, "I know damn well he will shut it
down."
As indicated above, I credit the above testimony
which is generally undenied. With the lone exception of
the May 8 allegation against Frank Podpechan, all the al-
legations are fully supported. The record supports, and I
find, that Respondent violated Section 8(a)(1) in each of
the above-referenced instances, with the exception of the
May 8 Podpechan allegation.
(b) Respondent, by the following named supervi-
sors, on or about the dates set opposite their name,
interrogated its employees relative to their union
membership, activities, and desires:
Paul Minnick--May 1:
Minnick asked William Swick if he had signed a
union card, on May 1.
CARBONEX COAL COMPANY 3
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bill Rogers-June 6:
On June 6, Rogers asked Jimmy Legates if he
was going to vote for the Union.
Frank W. Podpechan-June 6:
Employee Jerry Magness testified that, on June
6, Podpechan asked him what he thought of Jim
Smith who had just been terminated. Magness re-
plied that he didn't like Smith's termination very
much. Podpechan then asked Magness what he
thought of the Union. Magness replied that it
looked like the Union would go in. Podpechan said
that he could live with a private union or the Oper-
ating Engineers but that he couldn't operate under
the UMWA-he would just have to close the mine
down.
Richard J. Growitz-June 6:
On June 6, Growitz asked employee Hooley
Thompson what he thought of the Union. Growitz
asked how he was going to vote and what he
thought of an independent union. 23
Antone Hopper-June 15:
On June 15, Vice President of Maintenance
Hopper took employee Presfield to the side and
asked him, "I want to know-I have heard that you
were a union organizer, and I want to know why. I
want to know why you would be so stupid to orga-
nize something that was going to cost you your
job? Safety men are always on the Company side."
In view of Growitz' admission, I credit Thompson's
testimony that Growitz asked him what he thought of
the Union.
In view of the total context of Respondent's antiunion
campaign, I find that all the above instances constitute
interrogations in violation of Section 8(a)(1).
(c) Respondent, by the following named supervi-
sors, on or about the dates set opposite their names,
created the impression of surveillance of its employ-
ees' union activities:
James C. Smith-March 20:
On March 20, Smith told James Presfield, "Frank
Podpechan had heard rumors of a union." When
Presfield questioned what Podpechan would do,
Smith said he would shut it down.
Frank W Podpechan-May 8:
In his speech to an assembly of employees on
May 8, Podpechan said he had heard rumors about
the Union. Later in a conversation with Wayne
Moore, Podpechan said he believed Moore was in
favor of the Union.
2: Growitz denied he asked any employee how the employee was
going to vote but admitted he may have asked how an employee felt
about the Union. In view of Growitz' admission, I find it unnecessary to
determine whether he asked Thompson how he would vcte.
Richard J. Growitz-June 10:
On June 10, Growitz told William Swick, "Well,
I don't know if you are the union organizer." After
Swick told Growitz he was going to vote for the
Union, Growitz said, "You should consider your
future."
Antone Hopper-June 15:
As indicated above, on June 15, Hopper told
Presfield, among other things, that, "I heard that
you were a union organizer."
Again, in view of the total context of Respondent's
campaign, I find in agreement with General Counsel that
the above statements, which stand undenied, violate Sec-
tion 8(a)(l).
(d) Respondent, by Frank W. Podpechan, on or
about May 8, solicited grievances of employees at a
time when the Union was conducting an organiza-
tional campaign among its employees and in order
to induce its employees to forgo their union activ-
ity.
On May 8, Podpechan asked an assembly of em-
ployees what their problems were. When no one re-
plied Podpechan excused the supervisors. Podpe-
chan then said, he felt that if the men would get to-
gether and talk to him-have a committee to get to-
gether with him and tell him what the problems and
complaints were, that he felt that they could work
them out. Podpechan said he wasn't supposed to
say anything about the Union, but he felt that most
of the problems were in management and stuff that
could be worked out if "we would get a committee
of men to talk to him." Following the meeting Pod-
pechan asked employee Wayne Moore if he had any
problems and what Moore's problems were.
By the above statements to his employees Podpechan
was soliciting grievances in violation of Section 8(a)(l),
and I so find.
(e) Respondent, by James C. Smith, on or about
May 12, solicited an employee to determine the de-
sires of his fellow employees relative to the forma-
tion of a "Company Union."
Smith told James Presfield, on May 12 or 13, that
Podpechan wanted to know how the men felt about
a company union. Smith suggested that Presfield
could talk to the men since he was one of them.
Presfield did talk to the men and reported back to
Smith that the men were cool on the idea. Presfield
suggested a meeting between the men and Podpe-
chan to discuss the company union.
The above action by Superintendent Smith constitutes
illegal interference by Respondent into its employees'
union activities. I find it violates Section 8(a)(l).
(f) Respondent, by its following named supervi-
sors, on or about the dates set opposite their names,
informed its employees that it would be futile for
them to vote for or support the Union, in that Re-
CARBONEX COAL COMPANY 795
spondent would not recognize or bargain with the
Union:
Frank W Podpechan-May II and June 5, 6, and
19:
On May 11, Podpechan told a group of employ-
ees at the Cattleman's Restaurant that he would not
work under the United Mine Workers. Podpechan
said they had the Operating Engineers or he would
be agreeable to (the employees') own independent
union.
I find nothing in the record to support General Coun-
sel's June 5 allegation.
In a June 6 meeting with employees at a restau-
rant near Chelsea, Podpechan told the employees,
among other things, that he would not bargain with
the Mine Workers because of violence in strikes.
At a June 19 meeting Podpechan said that the
employees might be able to get along with the
UMW, but that he couldn't and wouldn't. Timothy
Pinkston recalled Podpechan saying he would not
bargain with the Mine Workers.
William Benes-June 21 and 28:
On June 21, James Presfield asked Superinten-
dent Benes when the negotiation meetings would
start. Benes replied, "Frank Podpechan does not
recognize the UMW, nor will he ever negotiate
with them because you don't have a contract until
you negotiate."
Jimmy Legates asked Benes, on June 28, if Pod-
pechan was going to negotiate with the Union.
Benes replied, "No [Podpechan] didn't have to talk
to them, the Mine Workers. If they called [Podpe-
chan] would not talk to them. There are ways of
getting around these things."
Richard Growitz-June 19:
During his June 19 speech, Growitz said the
Company couldn't see any way that they could op-
erate with the United Mine Workers representing
the men-that they couldn't pay the royalty on the
coal that the Mine Workers wanted.
I find that the May 11 and June 6 and 19 statements
by Podpechan and the June 21 and 28 statements by
Benes constitute 8(a)(1) violations as alleged in this sec-
tion (complaint par. 7 (f)). The statements cited above,
which were made by Growitz, have already been dealt
with under paragraph b(l), of this section. I find that
Growitz' statements violate Section 8(a)(1) as alleged in
paragraph 7(a) of the complaint, but do not constitute an
expression that it would be futile for the employees to
vote for the Union. I find no other statements by
Growitz on June 19 which, in my opinion, would consti-
tute a violation as alleged in complaint paragraph 7(F).
(g) Respondent, by its supervisor James C. Smith,
on or about June 6, directed an employee to remove
union insignia from his clothing.
On June 6, Smith asked employee William Swick,
"Bill, would you please remove those [Union] stick-
ers [from your helmet] just for me." Respondent of-
fered no evidence in denial of Swick's testimony,
nor did Respondent attempt to defend Smith's state-
ment on any basis.
Again, in view of the total context of Respondent's an-
tiunion campaign, I find a violation of Section 8(a)(l).
(h) Respondent, by Antone Hopper, on or about
June 16, threatened an employee with termination
of employment in retaliation for his union activities.
The evidence reflects that, on June 15, Hopper
told James Presfield, among other things, "I want
to know why you would be so stupid to organize
something that was going to cost you your job?"
I find Hopper's statement, which was not denied, con-
stitutes a threat of termination as alleged, in violation of
Section 8(a)(l).
(i) Respondent, by Frank W. Podpechan, prom-
ised economic benefits to its employees if they
would not support the Union.
This particular allegation failed to allege a date. I am
unaware of evidence supporting the allegation. In any
event, I find that the allegation is not sufficiently specific
to afford Respondent an adequate opportunity to defend.
Therefore, I find no violation as to this allegation.
(j) Respondent, by William Benes, on or about
June 28, threatened its employes with termination of
employment as a result of the Union's winning the
election of June 20.
Jimmy Legates asked Benes on June 20, "If we
hadn't voted for the UMWA and would have voted
for the Company independent union that they
wanted, if we all would have had our jobs?" Benes
replied, "Mostly likely [you] would have all kept
working like [you] were." Also on June 28, Benes
told James Lewis that he was going to lay Lewis
off. Benes said the reason for it was because the
Union was trying to come into the Company.
I find the above statements constitute threats of termi-
nation in violation of Section 8(a)(1).
(k) Respondent by Richard J. Growitz, on Sep-
tember 29, threatened to close the Chelsea, Oklaho-
ma mining operations and move said operations to
Porum, Oklahoma in the event its employees en-
gaged in a strike at the Chelsea, Oklahoma mine.
I found nothing in the record or in General Counsel's
and the Union's briefs regarding this allegation. There-
fore, as to this allegation, I find no violation.
(1) Respondent, by Frank W. Podpechan on or
about June 19, solicited the support of its employees
for labor organizations other than the Union, in-
cluding the formation of an "independent union."
CARBONEX COAL COMPANY 95
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(m) Respondent, by Richard Growitz, on June
19, solicited employees to form a company union.
(n) Respondent, by Richard Growitz, on June 19,
solicited support of his employees for labor organi-
zations other than the Union including formation of
an independent union.
The above allegations refer to the same meeting
during which Growitz and Podpechan both spoke to all
Respondent's employees. In matters material to this par-
ticular allegation the evidence includes:
Podpechan said, the employees might be able to
get along with the UMW, but that he couldn't and
wouldn't. Growitz told the men that the Company
could simply recognize the Operating Engineeers if
the employees wanted or they could form an inde-
pendent union by choosing a board or group of men
that would represent them. One employee recalled
Podpechan saying that he would accept either the
independent union or the Operating Engineers but
that he would not bargain with the Mine Workers.
Another employee, William Swick, recalled
Growitz remarking, "if [you] don't bring in the
United Mine Workers and [you] went for the inde-
pendent union [Respondent was] prepared to initiate
a tonnage bonus system. Erick Long recalled
Growitz saying " they could give us a $150 more
for the Company union."
Although I recognize some discrepancies in the above-
mentioned versions of the June 19 speech, the evidence
clearly suggests that I find that Respondent, through
Growitz or Podpechan, if not both solicited its employ-
ees to either form an independent union or support the
Operating Engineers.
(o) Respondent, by Richard Growitz, on June 19,
promised economic benefits to its employees if they
would not support the Union.
During his June 19 speech, employee Ed Daven-
port recalled Growitz telling the employees that the
Rogers mine could receive a tonnage bonus plan by
bringing in the Operating Engineers or forming an
independent union. William Swick testified that
Growitz said, "If [you] don't bring in the United
Workers and [you] went for the independent union
[Respondent] was prepared to initiate a tonnage
bonus system-or some kind of a wage bonus
system in the amount of $150 a month. Erick Long
remembered Growitz telling the employees that
"they could give us $150 more for the company
union."
As indicated above, I do not credit Growitz' version
of this speech. I find the evidence fully supports General
Counsel's allegation. The testimony convirces me that
Growitz promised a tonnage bonus to the employees if
they defeated the Union. I find that action violates Sec-
tion 8(a)(1).
(p) Respondent, by Frank Podpechan, June 20,
threatened an employee with termination of em-
ployment as a result of the Union's winning the
June 20 election.
Approximately 2 hours after the polls closed on
June 20 Frank Podpechan told employee Lester
Robinson, "It looks like you voted yourself out of a
job."
I find that comment violates Section 8(a)(1).
(q) Respondent by Bill Rogers on or about
August I threatened its employees with termination
of employment as a result of the Union's winning
the June 20 election.
In early August employee William Robinson
asked Foreman Bill Rogers what he thought of the
Union and what was going to happen. Rogers re-
plied, "I told you guys that if it went Union that
Frank would shut down and lay a bunch of you
guys off."
I find Rogers' comment violates Section 8(a)(l).
(r) Respondent, by Bill Rogers, on or about June
6, threatened its employees with layoff in the event
the Union was successful in its organizational activi-
ties.
On June 6, Rogers told employee Jimmy Le-
gates, if [you] vote [Rogers] could tell you how it
was going to be; that he used to be the pit foreman
at Porum for Podpechan and if [you] voted the
Union in [Podpechan would] do you the same way
he'd done Porum; laying them off and thinning
them out; just gradually fading away to nothing.2 4
2. Section 8(a)(3)
The consolidated complaint alleges and Respondent
admits that it laid off 18 employees between June 20 and
July 14. General Counsel alleges those layoffs were vio-
lative of Section 8(a)(3). Respondent contends the layoffs
were necessitated by economic conditions.
Additionally, General Counsel alleges that Respondent
has, since June 28, subcontracted all its hauling and laid
off its truckdrivers in violation of Section 8(a)(3). Re-
spondent contends that action was also necessitated by
economic conditions.
General Counsel alleges that Respondent violated Sec-
tion 8(a)(3) by laying off 18 employees shortly after the
June 20 election. Respondent admits the layoff but
denied it was motivated by its employees' union activi-
ties. Respondent contends the layoff was motivated by
economic factors.
Richard Growitz testified that he made the decision to
lay off employees at the Rogers mine. According to
Growitz, he made the initial decision to reduce the work
force in mid-April to early May 1968. Growitz testified
that he made that initial decision on the basis of records
revealing "productivity, the current runaway cost struc-
ture at the mine [and] low operating time of the equip-
ment." Growitz testified that he discussed his decision to
24 I make no further finding regarding the June 6 incident involving
Rogers in view of my finding under sec. B, I, (a), above, that this same
incident constitutes a violation of Sec. 8(a)(l).
CARBONEX COAL COMPANY 797
reduce the work force at the Rogers mine with Respon-
dent's president, Frank Podpechan, shortly after the de-
cision was made, "some time in April." This testimony
by Growitz was not supported by other evidence. Frank
Podpechan testified in conflict to Growitz. According to
Podpechan, his first discussion with Growitz regarding
the layoff occurred after Jim Smith was terminated as
mine superintendent on June 6. Podpechan recalled a
meeting regarding the budget which he recalled oc-
curred in early May. Podpechan was asked if anyone
suggested "layoff of people" as an alternative to budget
problems. Podpechan replied, "I don't think so." He then
testified, "I don't see how you can solve a blasting prob-
lem with laying somebody off." Podpechan went on to
testify that if anything was brought up relative to reduc-
tion in force it would have been in the nature of possibly
not mining anymore "Fort Scott coal," and if that were
brought up at all, it would have been brought up by him
(Podpechan). This testimony reflects discussion and rea-
soning completely different from Growitz' claim that a
layoff, based on productivity, cost, and loss of operating
time, was being recommended by Growitz.
Additionally, Growitz' testimony is in conflict with
that of former Mine Superintendent Jim Smith. Accord-
ing to Smith, Growitz told him to hire more employees
in early May. 25 Growitz suggested to Smith that they
should hire 15 new employees to eliminate the amount of
overtime they were then working. Growitz suggested
there were some good men at the Porum mine that they
might transfer.
Respondent, in its brief, points to three key positions
which allegedly affected its June-July layoff. Those posi-
tions were (a) the truckdrivers, (b) the "992" loaders,
and (c) the blasting crews.
(a) Truckdrivers: Respondent admitted subcontracting
100 percent of their trucking of coal from the mine to
the tipple, within a few days after the June 20 election,
without bargaining with the Union. Respondent contend-
ed, however, that it subcontracted approximately 70 per-
cent of its hauling prior to the election and that its own
trucking operation was used solely to supplement the
contract hauler. Respondent does not deny that this sub-
contract contributed to the layoff of its drivers, but it
contends the subcontract resulted from economic factors.
In defending its layoff decision, Respondent said the fol-
lowing about its trucking subcontract:
Although the Company owned four trucks, experi-
ence showed that only two, on the average, were
operable at any one time. The condition of the
trucks were [sic] so poor that they would have to
be replaced at a considerable cost if the Company
was to continue this supplemental trucking oper-
ation.
2a As indicated above I found Smith to be a credible witness.
Growitz' testimony was not impressive. He was often evasive on cross
and his testimony on material issues, including the testimony regarding
the basis for his decision to lay off employees, included different and
variate responses to similar questions Growitz' testimony also conflicted
in material aspects with testimony from other witnesses, including the tes-
timony of Respondent's chief executive, Frank Podpechan. Therefore. I
do not credit Growitz' testimony to the extent it conflicts with the testi
mony of Smith or other credited evidence
In addition, the contractor charge per ton of coal
hauled is substantially less than the $1.91 a ton that
it cost the Company to operate its own trucks.2 6
However, evidence at the hearing revealed that Re-
spondent ordered two new trucks for its Rogers mine in
April 1978. Furthermore, evidence at the hearing failed
to support Respondent's claim that it cost $1.91 a ton to
operate its own trucks.
Former Superintendent Smith testified credibly that
the trucking subcontractor was retained in March, to
demonstrate to Respondent the cost savings which
would result from using good trucks. Respondent's
trucks were in poor repair and the downtime on those
trucks was, according to Smith, causing its trucking cost
to average approximately $1.35 per ton. In April, Smith
convinced Growitz that his analysis of the subcontract
hauling demonstrated that Respondent could operate its
own trucks for approximately 95 cents to 98 cents per
ton. On the basis of Smith's recommendation, Growitz
ordered two new trucks for June delivery. However,
upon arrival, those trucks were assigned to Respondent's
mine at Porum, rather than to the Rogers mine.
(b) "992" loaders: In regard to its layoff of the opera-
tors of its front-end loaders (992 front-end loaders), Re-
spondent stated:
In June, one of the two 992 front-end loaders broke
down, eliminating the work for three operators. Our
equipment dealer estimates that it will cost approxi-
mately $100,000 to restore this machine to good op-
erating condition. 27
The evidence revealed that one of the "992s" did
break down in early June with a cracked head. Howev-
er, the cost of that repair was estimated to be less than
$10,000. Respondent did produce its "equipment dealer."
However, the equipment dealer, Jim Kuykendall, testi-
fied that his repair report was on both 992s and was not
made until July 27, long after the early June breakdown
and the layoff. Furthermore, Kuykendall testified that his
repair report reflects repairs which would bring the
equipment into like-new condition. Those estimates were
approximately $52,000 per machine.
(c) Blasting crews: In regard to its layoff of the blasting
crews, Respondent stated:
In May, the new management of the Company
completed its evaluation of the operation of the
Rogers Mine. The Company discovered that the
Mine Superintendent had embarked on a massive
blasting program utilizing two crews working
around the clock on 12 hour shifts. Apparently, the
Mine Superintendent was trying to get way ahead
in the blasting operations. Unfortunately, blasting in
a strip mine is effective only for short distances
back from the existing pit area unless you utilize
very expensive techniques and explosives. This is
why the prudent mine operator does not try to get
way ahead on blasting operations. The Mine Super-
t6 This statement is contained in a letter from Respondents attorney to
the Union dated August 9, 198
2 See fn 26. upra
CARBONEX COAL COMPANY 7
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intendent was consuming large quantities of the
very expensive explosives and using ineffectively
some of the most expensive techniques. As a result,
most of this massive effort was totally useless, and a
substantial waste of money. 28
However, at the hearing, testimony from Respondent's
witnesses demonstrated that the above statement was not
correct. Richard Growitz admitted learning of Mine Su-
perintendent Smith's blasting program as early as March
1978. Growitz testified that, on noticing the high cost of
explosives, he transferred authority to purchase explo-
sives to himslef. By May, according to Growitz, he had
brought the explosive cost into line. Additionally, the
evidence developed that the high explosive cost was
partly due to defective explosives. Eventually Respon-
dent received a $33,000 reimbursement and 800 cases of
explosives due to those defective explosives.
Frank Podpechan testified that he too was concerned
about the high explosive cost. However, according to
Podpechan, that problem did not contribute to the
layoff. Podpechan testified, "I don't see how you can
solve a blasting problem with laying somebody off."
Growitz testified that, under Smith's program of blast-
ing ahead, a layoff was planned in the blasting crew once
the blasting progressed three pits in advance of the dig-
ging. Smith disputes this assertion, saying the only item
of that nature he and Growitz discussed involved over-
time and the use of a relief driller. Smith testified that he
told Growitz that the blasting ahead program would
eventually reduce the amount of overtime and eliminate
the necessity of using a relief driller. In any event,
Growitz admitted that the blasting ahead program never
succeeded in advancing three pits ahead of the digging.
Smith anticipated reaching the three-pit advance stage
during the summer since a dry summer would permit
them to blast more on a daily basis than during the wet,
winter months. Again, I credit Smith's testimony. More-
over, even Growitz' testimony demonstrated that Re-
spondent's August 9 statement to the Union regarding
layoff of the blasting crew was a fabrication as to materi-
al issues including the timing of Respondent's knowledge
of the blasting ahead program. The testimony of Respon-
dent's president, Frank Podpechan, demonstrated that
there was no real relationship between the alleged high
cost of explosives during the cold weather months and
the June layoff.
On the basis of the above facts, and the record as a
whole, I am convinced that Respondent has been in the
process of fabricating an economic justification for its
June-July layoff, since August 9, 1978, and before. The
evidence received at the hearing demonstrated that Re-
spondent's August 9 letter to the Union was designed to
mislead and confuse consideration of the layoff issue.
The letter misrepresented the basis for the trucking sub-
contract and the cost of using company trucks. It misrep-
resented the extent of the repairs necessary to repair the
992 loader during June 1978. It also misled I:he Union as
to the relationship between the "blasting ahead" program
'a See fn. 26, supra.
and the layoff.2 9 In view of those misrepresentations,
and the record as a whole, I find that Respondent's as-
serted economic basis for the layoff is pretextuous.3 0
Although Respondent claimed the layoff was economi-
cally motivated, I note that none of the laid-off employ-
ees were told anything other than they were being laid
off because of the Union. In a speech on the day before
the election, the employees were told they could receive
a $150-per-month bonus similar to that the Porum em-
ployees were receiving, if they voted down the UMW.
Although Respondent claimed that it could not afford to
repair a cracked head on a 992 loader at a cost of less
than $10,000, it was able to purchase four new tractors
and three trailers for the Porum mine. The record re-
flects that the tractors alone cost $45,000 each. In June
1978, Porum was not as productive as the Rogers mine.
Additionally, Respondent is now in the process of open-
ing a new mine, the Defiance mine.3 '
The evidence is conclusive that the June-July layoff
resulted from the union campaign and victory in the
June 20 election. As indicated above, the employees
were threatened on numerous occasions, both before and
after the election, that a union victory could result in
loss of jobs. The threats came from foremen, superinten-
dents, and even the president of the Company. Several of
the laid-off employees were told by supervision that they
were being laid off because Frank Podpechan would not
operate under the UMW. Additionally, undenied evi-
dence reveals that one of the reasons for the layoff was
Frank Podpechan's desire to reduce the number of em-
ployees at Rogers mine to a level that would not be so
attractive to the UMW.
Therefore, I find that Respondent's asserted economic
defense is not supported by the record. On the basis of
statements to employees, the testimony of former Mine
Superintendent Smith, and the record as a whole, I am
convinced that economic considerations did not play a
substantial part in Respondent's decision to lay off 18
employees in June and July. I am convinced and find
that Respondent was motivated in substantial measure by
its employes' union activities and in particular by the
Union's victory in the June 20 election. The evidence is
unrebutted that several of the laid-off employees were
told by supervision that they were being laid off because
they selected the UMW. No one was told the layoff was
caused by economic factors. I have also considered' the
timing of the layoffs, and the strong evidence of animus
against the UMW,3 2 in determining that the layoffs vio-
late Section 8(a)(3). I am aware that the evidence shows
that several, but not all, of the alleged discriminatees
were engaged in union activity. However, in view of the
29 When Respondent wrote the Union on August 9, it had no reason
to anticipate its former mine superintendent would give evidence to the
Union and General Counsel. If Smith had not testified there would have
been little basis on which the contents of the August 9 letter could have
been disputed.
30 The credited testimony of former Superintendent Smith contributed
to my determination that Respondent's financial condition was not a sub-
stantive factor in the layoff
3' Growitz admitted the name "Defiance" was selected in view of its
opening the mine despite the activities of the UMW.
32 Additionally, none of the laid-off employees have been recalled or
offered positions at other locations.
CARBONEX COAL COMPANY 799
record as a whole, and especially unrebutted evidence
that Frank Podpechan planned to reduce the work force
so the Rogers mine would not be so attractive to the
UMW, I find that all the layoffs were occasioned by the
employees' selection of the UMW as their representa-
tive. 3 3
In view of the preelection comments by supervision
demonstrating that Respondent considered the truck-
drivers to be "troublemakers" and among the instigators
of the Union, and the June 28 comment by Superinten-
dent Benes that one of the ways to get around the Union
was to contract out the trucking, I find that Respon-
dent's conversion to 100-percent subcontract of its haul-
ing operation was in violation of Section 8(a)(3). In
reaching this decision, I have also considered evidence
demonstrating that the trucking subcontract was initiated
in order to consider the wisdom of Respondent investing
in new trucks. Respondent's purchases of new trucks for
the Rogers mine, and the subsequent diversion of those
trucks to Porum, clearly show it intended to continue its
own trucking operation. Respondent's 100-percent sub-
contract resulted in the layoff of two truckdrivers and
violates Section 8(a)(3). 34
3. Section 8(a)(5)
General Counsel contends that Respondent engaged in
surface bargaining. General Counsel and Respondent
agree that Respondent proposed, and the Union agreed
to, a tonnage bonus system 35 which went into effect on
October 1, 1978. Nevertheless, it is contended that, in
consideration of Respondent's entire course of conduct,
the evidence demonstrates that Respondent did not
engage in bargaining with a sincere intention to arrive at
an agreement with the Union. I find that the record sup-
ports General Counsel's surface-bargaining contention.
Respondent engaged in numerous 8(a)(1) violations in-
cluding several threats that it would not negotiate with
the UMW and that it would not sign a contract. The
record shows that Respondent continually demonstrated
strong animus against the UMW in particular.
I find most disturbing Respondent's continuous insis-
tence that it would not simultaneously negotiate and liti-
gate the pending unfair labor practice matter. During the
parties' negotiations the original complaint in the instant
case was outstanding. The December 6 hearing date was
set by order dated August 8, 1978. The evidence demon-
strated that Respondent threatened to terminate negotia-
tions during the August 3, 23, and 24 sessions unless the
Union withdrew its unfair labor practice charges. On
September 15, Respondent did terminate negotiations on
that basis. Subsequently, by telegram dated October 6,
the Union offered to meet to discuss any subject appro-
priate for collective bargaining. Respondent responded
on October 10, stating "further meetings fruitless unless 5
days after receipt by Company of written union proposal
13 Pyro Mining Company, Inc., 1230 NLRB 782 (1977).
s4 As indicated below, I find this action by Respondent also violated
Sec. 8(aX5) since it did not bargain over the subcontract.
2 I credit evidence that Richard Growitz, in the June 19 preelection
speech, promised the Rogers employees a "tonnage bonus system" if they
decided on the Operating Engineers or an independent union rather than
UMW (supra).
regarding said layoff."3 6 Of course, the layoffs were an
issue in the unfair labor practices proceedings but not di-
rectly involved in negotiations. There have been no ne-
gotiations since September 15. When Respondent broke
off negotiations on September 15, the unfair labor prac-
tice hearing was over 2-1/2 months off. Nevertheless,
Respondent claimed it did not have the time to both con-
tinue negotiations and prepare for the hearing. The
Board has found that similar refusals to negotiate unless
unfair labor practice charges are withdrawn violate Sec-
tion 8(a)(5). 37
Further evidence of Respondent's bad faith are two
unilateral actions it took immediately after the June 20
election. Prior to June 20, Respondent was supplement-
ing its trucking operations with a subcontract trucker,
Flood & Sons. This subcontractor commenced hauling in
March 1978, at the suggestion of former Mine Superin-
tendent Jim Smith. Smith recommended supplementing
the trucking operation with a subcontract in order to
demonstrate to the Company the wisdom of investing in
new trucks. At the time of the election, Respondent was
subcontracting to Flood & Sons somewhat less than 60
percent of its hauling. The remaining 40 percent of the
hauling was performed by Respondent's own drivers.
However, on June 27, Respondent commenced to sub-
contract 100 percent of its hauling to Flood & Sons and
Respondent's two drivers were laid off. Respondent stip-
ulated that it did not bargain over this increase in sub-
contract trucking.
Additionally, Respondent stipulated that it did not bar-
gain with the Union over its decision to lay off 18 em-
ployees during the few weeks after the June 20 election.
Respondent's obligation to recognize and deal with the
Union arose on June 20, when a majority of the employ-
ees voted for the Union.3 8 Therefore, I find that Respon-
dent's unilateral acts in subcontracting 100 percent of its
trucking operations and laying off 18 employees (ap-
proximately 30 percent of its work force) violate Section
8(a)(5) and contribute to my determination that Respon-
dent was acting in bad faith.
On August 9, Respondent's attorney advised the Union
of the reasons for its layoffs. As indicated above, I find
that letter contained material misrepresentations designed
to mislead the Union. That letter contributed to my de-
termination that Respondent was not acting in good
faith.
On August 3, Respondent proposed a management-
rights clause which would require the Union, in effect,
to waive practically all its rights. Respondent continued
to insist on this provision throughout negotiations. Such
a proposal in the context of all the circumstances of this
case supports a finding of bad faith.3 9 Respondent insist-
ed on the management-rights clause despite the Union's
s6 These telegrams followed Respondent's October 6 telegram:
Assume strike beginning October 2, is Union's final proposal re June
layoff, demand written justification for proposal by October 11.
Available to meet October 17 regarding this layoff issue if mediator
available
3a Griffin Inns.% etc., 1229 NLRB 199 (1977)
38 Valley Oil Co.. Inc., 1210 NLRB 370. 379 (1974).
3a Crystal Springs Shirt Corporation, 1229 NLRB 4 (1977); San Isabel
Electric Services, Inc., 225 NLRB 1073 (1976).
CARBONEX COAL COMPANY 9
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
willingness to accept a reserved-rights clause similar to
the clause Respondent had agreed to in its contract with
the Operating Engineers union at its Porum mine.
Respondent also refused to negotiate regarding a
union-security clause. Again, Respondent took a position
contrary to its agreement with the Operating Engineers
at Porum. I find this fact contributes to a showing of bad
faith in its dealings with the UMW.
The credited evidence reveals that Respondent refused
to negotiate with the Union regarding its safety and
health proposal. The Board has found such actions
which would strip the Union of any effective method of
representing its members on the issues of safety and
work rules expose the employer to a finding of bad
faith.40
Therefore, I find that Respondent's course of conduct
demonstrates that it has engaged in surface bargaining.
Respondent has not engaged in bargaining with a sincere
intention to arrive at an agreement with the Union.
4. The unfair labor practice strike
General Counsel alleges and Respondent admits that
certain of Respondent's employees engaged in a strike at
Respondent's Rogers mine. The evidence is uncontested
that the employees struck on October 2. Various employ-
ee witnesses testified on behalf of General Counsel and
Respondent regarding the discussions during the meeting
of September 29, in which the strike vote was taken. The
evidence indicates that the employees present and voting
during that meeting discussed, as bases for the strike, the
June-July layoff, the subcontracting of the hauling oper-
ations, and Respondent's surface bargaining. Therefore,
the evidence clearly demonstrates that the October 2
strike was, as alleged, caused by Respondent's unfair
labor practices.
The complaint does not allege but uncontested evi-
dence clearly indicates that at least three employees were
laid off because of the employees' October 2 strike.4'
Employees Edward Williams, Lester Robinson, Jr., and
William Robinson were informed on October 2 that they
were not to return to work until further notice. At the
time of the hearing none of the three had been recalled.
Following their layoff, both William and Lester Robin-
son, Jr., were told by the mine superintendent that they
could not be recalled until some legal matters were con-
cluded. William Robinson testified that on seeing the
picket line on October 2 he pulled over and started talk-
ing to the guys on the picket line. He did not cross the
picket line but subsequently returned home where he
was told that Paul Minnick had called and left word for
him not to return to work. Under those circumstances
the record reflects that William Robinson, Edward Wil-
liams, and Lester Robinson, Jr., qualified as strikers who
were terminated because of the strike. 4 2 Respondent ad-
'° San Isabel Electric Services, Inc., supra.
4, The layoff of the three employees was related to and intertwined
with the complaint allegations, especially with the unfair labor strike alle-
gation, and I find that the layoff of the three was fully litigated. See The
Estate of Alfred Kaskel d/b/a Doral Hotel and Country Club, 240 NLRB
No. 150 (1979).
42 Pittsburgh and New England Trucking Co., 238 NLRB No. 227
(1978).
vanced no legitimate reason for notifying the three em-
ployees of their layoff following the strike. Therefore, I
conclude Respondent took this action to punish the three
employees because they did not cross the picket line on
the day of the strike. All employees who fall into the
category of strikers who were terminated because of the
strike would be entitled to backpay from the date of
their termination. 4 3
CONCLUSIONS OF LAW
I. Respondent 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 organi-
zation within the meaning of Section 2(5) of the Act.
3. By threatening its employees with mine closure be-
cause of their union activities; interrogating its employ-
ees about their union activities; creating the impression
of surveillance of its employees' union activities; solicit-
ing grievances of its employees in order to discourage
the employees' union activities; soliciting employees' as-
sistance in determining its employees' willingness to form
a company union; informing its employees it would be
futile to support the United Mine Workers of America;
directing its employees to remove union stickers from
their helmets; threatening its employees with termination
of employment because of their union activities; solicit-
ing its employees to support another labor organization
or a company union; and promising its employees eco-
nomic benefit in order to discourage their union activi-
ties, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. Respondent, by laying off and thereafter refusing to
reinstate its employees named below on the dates oppo-
site their respective names, because of its employees'
union activities, has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act:
Junior A. Berry
Ed Davenport
Derrell L. Jordan
Jimmy E. Legates
Charles F. Lewis
James M. Lewis
Jerry D. Magness
Wayne M. Moore
Rex Daniel Rymer
Paul D. Pinkston
James Presfield
Howard W. Robinson
Roy J. Stephenson
William R. Swick
Hooley G. Thompson
Howard M. Timms
Mark W. Walker
Pete Triplett
June 28
June 29
June 29
June 27
June 28
June 28
June 29
June 23
June 27
June 29
June 29
June 20
June 20
July 14
June 21
June 28
June 28
June 28
5. All production and maintenance employees, includ-
ing truckdrivers, employed by the Respondent at its
mining operation near Chelsea, Oklahoma, excluding all
4' Abilities and Goodwill, Inc, 241 NLRB No. 5 (1979).
CARBONEX COAL COMPANY 801
other employees, coal processing and loading employees,
office clerical employees, guards and supervisors as de-
fined in the Act, constitute an appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
6. Since June 20, 1978, the above-named labor organi-
zation has been and now is the exclusive representative
of all employees in the aforesaid unit for the purpose of
collective bargaining within the meaning of Section 9(a)
of the Act.
7. By engaging in surface bargaining and not bargain-
ing with a sincere intention to arrive at an agreement
with the above-named labor organization as the exclusive
bargaining representative of all the employees of Respon-
dent in the appropriate unit, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
8. Respondent, by engaging in the above-mentioned
unfair labor practices, caused and prolonged a concerted
work stoppage and strike by various employees in the
above-described unit, commencing on or about October
2, 1978, at Respondent's mine near Chelsea, Oklahoma.
9. Respondent, by terminating and thereafter refusing
to reinstate its following-named employees on October 2,
1978, because of its employees' involvement in the
above-mentioned strike, has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act: William Robinson, Edward Williams,
and Lester Robinson, Jr.
10. Respondent, by subcontracting 100 percent of its
hauling operations on or about June 28, 1978, and laying
off two of its trucker employees (included among those
employees named in subpar. 4, above) because of its em-
ployees' union activities and without bargaining with the
above-named labor organization, has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(l), (3), and (5) of the Act.
11. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l), (3), and (5)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom, and to take certain affirmative ac-
tions designed to effectuate the policies of the Act. My
recommended Order will require Respondent to offer
Junior A. Berry, Ed Davenport, Derrell L. Jordan,
Jimmy E. Legates, Charles F. Lewis, James M. Lewis,
Jerry D. Magness, Wayne M. Moore, Rex Daniel
Rymer, Paul D. Pinkston, James Presfield, Howard W.
Robinson, Roy J. Stephenson, William R. Swick, Hooley
G. Thompson, Howard M. Timms, Mark W. Walker,
Pete Triplett, William Robinson, Edward Williams, and
Lester Robinson, Jr., reinstatement to their former jobs
and, upon application, all striking employees, terminat-
ing, if necessary, any strike replacements, and make
whole each of the named employees for any loss of earn-
ings they may have suffered by reason of Respondent's
discrimination against them, 44 and that it post appropri-
ate notices. Loss of backpay shall be computed and inter-
est thereon shall be added in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977). 4 5
In the event Respondent does not reinstate the striking
employees in the manner set forth above within 5 days
from the date of their application, backpay with interest
(computed as indicated above), shall commence running
from the date on which the 5 days expire.
[Recommended Order omitted from publication.]
44 In accordance with the rule announced in .4biilies and Goodwill.
Inc.. 241 NLRB No. 5, find Respondent's liability for loss of earnings
runs from October 2, 1978, as to employees William Robinson, Edward
Williams, and Lester Robinson, Jr.
4' See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
CARBONEX COAL COMPANY