Cub Branch Mining

National Labor Relations Board - Board Decisions

Sep 28, 1990

300 N.L.R.B. 57 (N.L.R.B. 1990)

57
300 NLRB No. 8
CUB BRANCH MINING
1 We grant the joint motion by the General Counsel and the Respondent to
correct the judge’s decision and to correct the transcript by changing various
references from ‘‘Paint Branch’’ to ‘‘Frank Branch.’’
The judge inadvertently referred to the complaint’s alleging a violation of
Sec. 8(a)(3) of the Act; no violation of Sec. 8(a)(3) was alleged.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
3 In adopting the judge’s decision we find it unnecessary to rely on the
judge’s fns. 14 and 17 or on the judge’s statement that the delivery of two
bulldozers to Honey Branch mine before that site was closed indicated opti-
mism on the Respondent’s part regarding future production at Honey Branch.
As part of his recommended remedy, the judge required the Respondent to
offer immediate reinstatement to all employees terminated at Honey Branch,
discharging if necessary persons hired after April 19, 1989. He gave the Re-
spondent the choice of either reopening Honey Branch or effecting reinstate-
ment at other nearby mines. Noting the possibility that the Respondent, at the
compliance stage, may show that Honey Branch would have closed at some
time after April 19 for legitimate reasons, he provided that in that case back-
pay not be tolled to those discharged employees denied reinstatement during
the interim, to any vacancies at the Respondent’s other locations.
Consistent with this remedy, if there are not enough vacancies to effect full
reinstatement at the Respondent’s other nearby mines (i.e., even after dis-
charging persons hired after April 19, 1989), and if reopening Honey Branch
is shown to be unduly burdensome, the other discharged employees should re-
main on a preferential hiring list, to be reemployed as openings arise. NLRB
v. Fort Vancouver Plywood, 604 F.2d 596, 601 (9th Cir. 1979). If the Re-
spondent succeeds in showing that Honey Branch would have closed for legiti-
mate reasons after April 19, backpay liability to those employees not yet rein-
stated will be tolled as of that later date, provided that the failure to reinstate
them is legitimately grounded (e.g., insufficient vacancies).
1 Unless otherwise indicated all dates refer to 1989.
2 The official transcript of proceeding is corrected insofar as it refers to the
Paint Branch site, as ‘‘Frank Branch.’’
Cub Branch Mining, Inc. and David Maynard. Case
9–CA–26445
September 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 20, 1990, Administrative Law Judge Joel
A. Harmatz issued the attached decision.1 The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Cub Branch Mining, Inc.,
Kenova, West Virginia, its officers, agents, successors,
and assigns, shall take the actions set forth in the
Order.
Danon W. Harrison, Esq., for the General Counsel.
George J. Oliver, Esq. (Smith, Heenan & Althen), of Wash-
ington, D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Huntington, West Virginia, on September 19 and
20, 1989, on an unfair labor practice charge filed on May 17,
1989, and a complaint issued on July 12, 1989, alleging that
the Respondent violated Section 8(a)(3) and (1) of the Act
by discharging employees because of their participation in a
strike protected by Section 7 of the Act. In its duly filed an-
swer, the Respondent denied that any unfair labor practices
were committed. Following close of the hearing, briefs were
filed on behalf of the General Counsel and the Respondent.
On the entire record, including my opportunity directly to
observe the witnesses while testifying and their demeanor,
and after considering the posthearing briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the surface
mining of coal at various sites in the State of West Virginia.
In the course of those operations, it annually purchases and
receives goods and materials valued in excess of $50,000 di-
rectly from points outside the State of West Virginia. The
complaint alleges, the answer admits, and I find that the Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
The Respondent’s employees have no history of collective
bargaining and union representation is not a factor in this
proceeding. At times material, the Respondent was engaged
in the production of coal at various surface mines. In April
1989,1 these operations were conducted at the instant Honey
Branch site and, another, about 6 miles away, known as the
Paint Branch site.2
The complaint focuses essentially on events of April 19.
That morning, a work stoppage was engineered at Honey
Branch by a single employee, Mike Messer. This step was
taken to further Messer’s protest of the Respondent’s failure
to grant him a higher rate of pay and promotion. In con-
sequence, almost the entire day shift refused to report to
work. That evening the strikers were informed that the mine
would be closed permanently, and that they were terminated.
The General Counsel contends that the stoppage was pro-
tected by Section 7 of the Act, and that, therefore, the termi-
nation of the strikers violated Section 8(a)(1) of the Act. The
Respondent argues that the strike was unprotected and that,
in any event, the mine previously had been targeted for pos-
sible closure, and considering past losses, which were com-
pounded by the strike, its decision to do so was legitimately
based.
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The testimony offers various combinations of employees who crossed the
picket line that day. There is some suggestion that G. J. Tackett, Vasco
‘‘Skip’’ Layne, and Mike Watts did so as well. The relevant payroll records
at Honey Branch for the period ending April 22 fail to confirm that Tackett,
Layne, or Watts had earnings on April 19. See R. Exh. 2. As for Cantrell and
Raymond Maynard, both were terminated, but soon were rehired to perform
reclamation work at Honey Branch. See R. Exh. 3(a).
4 About a week later, Messer received a layoff slip, stating: ‘‘Permanent lay-
off, job shut down.’’
5 Cf. Gunnels Industrial Painters, 197 NLRB 599, 600 (1972).
6 The Respondent argues that ‘‘Messer’s actions on April 18 fell far short
of activity which sought ‘‘to initiate or to induce or to prepare for group ac-
tion.’’ This test articulated in the line of cases highlighted by Meyers Indus-
tries, 268 NLRB 493 (1984), and 281 NLRB 882 (1986), affd. sub nom. Prill
v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), is relevant when an employee, from
beginning to end, steers an individual course under conditions which may or
may not fall within Sec. 7. On the other hand, this standard is superfluous
where retaliation addresses ordinary group action, itself concerted, i.e, a strike
by numerous employees. The fact that the Board in MCI Mining Corp., 283
NLRB 698 (1987), mentioned other factors in concluding that a strike was
protected does not nullify the Congressional mandate in Sec. 13 that: ‘‘Noth-
ing in this Act, except as specifically provided herein, shall be construed so
as either to interfere with or impede or diminish in any way the right to strike,
or to affect limitations or qualifications on that right.’’ Furthermore, aside
from whether Messer’s grievance was discussed with coworkers before April
19, which it was, the record attests to the fact that at least some who partici-
pated in the strike were aware of Messer’s problem and supported his position.
Cf. Anco Insulations, 247 NLRB 612 (1980). Indeed it is fair to assume that
all willing to honor a picket line at the personal cost of lost wages, did so
fully mindful of the underlying grievance and took this step because they sup-
ported it. Contrary to the Respondent’s interpretation of Meyers II supra, Sec.
7 of the Act does not distinguish between the planning of, and the sponta-
neous, de facto, participation in group action. To rule that the former is pro-
tected but the latteris not is to exalt ‘‘preparation’’ over ‘‘participation’’ and
do violence to the ordinary meaning of ‘‘mutual aid and protection.’’
7 The Respondent draws an analogy between the strikers in this case and
sympathy strikers, whose ‘‘rights . . . are deemed to be those, and only those,
with whom they sympathize.’’ Pacific Telephone & Telegraph Co., 107 NLRB
1547 (1954). The Respondent offers that because Messer’s complaint was per-
sonal and unprotected, the entire walkout assumed that character. In support,
it is stated that:
B. The Walkout and Its Origin
Michael Messer in April 1989 was employed as a laborer
at the Honey Branch site. His rate was $7.50 per hour. He
claims that prior to the stoppage he had been offered the next
vacancy on a grease truck at the operator’s hourly rate of
$10.75. When the vacancy arose, it was on the second shift.
On Saturday, April 15, Messer was told by Maintenance
Foreman Tim Tackett that he could make the change, but
would earn only the laborer’s rate he was paid on day shift.
Messer rejected this offer. Later that same week, Messer was
assigned temporarily to operate a dozer, but again was de-
nied the higher operator rate.
Messer, by April 18, was disturbed to the point of dis-
cussing his situation with coworkers, indicating to at least
one, Paul Stacy, that he was planning on putting up a picket
sign the next morning. On the morning of Wednesday, April
19, Messer arrived early, parking his truck along the private
access to the Honey Branch site. He prepared a makeshift 8-
by 9-inch sign, which stated ‘‘unfair labor.’’ This, he affixed
to the front window of his truck. As coworkers reported for
work, they stopped and were told by Messer that he had ‘‘a
work stoppage.’’ He requested that they ‘‘honor my line.’’
Coworker Paul Stacy was the first to arrive. He relates that
he honored the picket line because he ‘‘figured one of these
days I may need some help and I would ask him [Messer]
for help.’’ On the day shift, some 45 additional employees
declined to cross. The payroll record covering that timeframe
indicate that only two Raymond H. Maynard and Eulas
Cantrell had earnings for that day.3
That morning, onsite managers, including Al Roe, the gen-
eral superintendent, and Raymond E. Maynard, the day-shift
foreman, soon learned that the picket line had been estab-
lished by Messer, and was supported by coworkers to further
his claim for an oiler job with ‘‘top pay.’’ They reported this
development to Larry Heatherman, the Respondent’s per-
sonnel manager, and Chester Harris, its president.
On direction of Harris, during the course of the day, Roe,
Raymond, and Heatherman, on three distinct occasions, ap-
proached the picket line urging the men to return to work,
while inviting Messer to the office to discuss his grievance.
Over their denials, all three were identified by witnesses for
the General Counsel as having warned the men on different
occasions that if they did not return to work, the operation
would be shut down. In any event, management’s efforts
proved fruitless, as neither they, nor Messer would yield over
the question of whether the dispute would be discussed in the
office, as sought by management, or at the site of the picket
line, and in the presence of coworkers, as Messer insisted.
Harris testified that when his staff reported back that the
dispute had not been resolved, he reviewed financial record
and decided about noon to close the mine. However, he con-
tacted members of the board of directors, and admitted that
it wag not until 6 p.m. that local management was told. At
that time, he instructed Roe to inform the men that the
Honey Branch mine would be closed for economic reasons.
Roe did so, and, later, all of the employees at this location
were formally notified that the mine had closed, and they
had been permanently laid off.4
C. The Prima Facie Case
The threshold issue is whether the work stoppage was pro-
tected. In this regard, the Respondent observes, quite cor-
rectly, that the underlying dispute was prompted by Messer’s
personal complaint which, if resolved favorably, would not
impact directly on any other employees. It does not follow,
however, that those who subsequently supported Messer by
participating in the work stoppage were beyond statutory
protection and hence fair game for retaliation. The Board has
consistently held that concerted employee action, when in-
voked peaceably, to further an employment claim, such as a
wrongful discharge, albeit personal in nature, remains within
the protective mantle of Section 7 of the Act. See, e.g., Buck
Brown Contracting Co., 283 NLRB 488, 489, and cases cited
at 513 (1987). In this cage, the alleged discrimination was
not aimed narrowly at the underlying grievance and its pro-
ponent,5 but broadly at the common cause manifested by the
strikers, all whom enmeshed themselves in the quest to re-
verse management’s judgment on a personnel matter. Once
joined by coworkers, Messer’s individual goals were adopted
by the group. By this very process, management was put on
notice, that its work force would not stand idly by in the face
of unfair treatment. At that juncture, Messer’s effort to vindi-
cate his employment claim had been embraced by all as their
rallying point. Thus, the effort qualified as protected con-
certed activity, and because the striker’s endeavor was inof-
fensive to statutory policy, it fell within Section 7 guaran-
tees, without inquiry as to whether the underlying grievance
was meritorious, previously discussed,6 or beneficial to more
than one employee.7
59CUB BRANCH MINING
It would be utterly illogical to conclude that a sympathy strike which
compounds the ‘‘undue harassment’’ to an employer caused by a single
employee’s unprotected strike deserves any greater protection than the in-
dividual’s unprotected protest itself.
The argument is not lacking in facial appeal. However, I an aware of no au-
thority that treats employees who join a strike in support of a coworker’s indi-
vidual grievance against their common employer as ‘‘sympathy strikers.’’ Nor
do I perceive as to just how statutory interests would be furthered by cutting
adrift those who would be engage in this form of ‘‘mutual aid and protec-
tion.’’ It is true that Messer’s claim was personal and that favorable resolution
would not benefit coworkers directly. It is also true that, if he lacked support
from others, he could have been discharged with impunity. That, however, is
not what occurred here. The Respondent’s action cut down an entire work
unit, whose pecuniary interest in the outcome may have been nil, but whose
support of the job action was calculated to influence, in a positive way, their
own work environment. Where, as here, there is no other hedge against unilat-
eral management action, employees who resist, and thereby seek to influence
decisions affecting their workplace, have more than a passing interest in reso-
lution of an otherwise personal grievance. Thus, unlike sympathy strikers who
support a cause which lacks relevance to their own work unit, the Respond-
ent’s employees sought to improve their own lot by participating in Messer’s
walkout. Hence, Sec. 7 of the Act removed coercion from among the options
available to the Respondent for dealing with that endeavor.
8 R. Exh. l(a).
9 R. Exh. l(b).
10 R. Exh. 1(c).
11 One can take notice of the fact that Appalachia under the best of weather
conditions would alternate between freeze, thaw, and precipitation, to a point
burdening the earth with heavy moisture well into the spring.
12 Roe’s testimony in this respect was corroborated by Foremen Ray May-
nard, Glenn Messer, and Jimmy Lee Tackett.
On the issue of motive, ordinarily, any management action
detrimental to participants in a protected work stoppage is
sufficiently destructive of employee rights to be presump-
tively unlawful. As such, at a minimum, the employer is im-
pelled to substantiate an overarching business justification.
NLRB v. Great Dane Trailers, 388 US 26 (1967). In any
event, even if the General Counsel were required to present
specific evidence of animus, an obligation to be adjudged in
light of Wright Line, 251 NLRB 1083 (1981), ample evi-
dence exists here to substantiate the requisite nexus between
the stoppage and the decision to close. Thus, it is apparent
from uncontested evidence that Harris, on April 19, did not
even begin to consider the possibility of closure and did not
make any decision in that regard until provided reports that
repeated appeals that the strikers return to work had proven
fruitless. The inference that arises is more than sufficient to
shift the onus to the Respondent to divorce the shutdown,
and resultant discharges, from proscribed considerations.
D. The Defense
The Respondent claims that the Honey Branch employees
were terminated in consequence of an economically oriented
decision to shut down the mine. Though several profit and
loss statements have been introduced, the documentation is
inconclusive, with the bridge between them and a finding of
business justification left to stand on Harris’ parol testimony.
He testified that during his 2 years at the helm, the Honey
Branch mine was nonprofitable. He attributed this to ineffi-
ciencies stemming from Honey Branch’s 14–1 ratio of over-
burden to extracted coal, contrasted with 7–1 at Paint
Branch, a more profitable venture.
Specifically, Harris relates that mining operations began at
Honey Branch in September 1987. After the July 1988
monthly cost statement reflected a loss of almost $1 million
that year,8 he conducted a meeting with supervisors on Au-
gust 8, 1988. At that time, ideas were exchanged for increas-
ing productivity and decreasing costs. The operation showed
improvement through the end of the year and into January
1989. Between July and December, Honey Branch had
turned a profit of almost $100,000,9 with a profit of almost
$200,000 in the last quarter. This turnabout was not the only
factor suggesting that 1989 offered a year of great promise.
First, January 1989 turned out to be a pretty good month.
More importantly, in that month work was scheduled to
begin under a new permit on a contiguous tract called Open
Fork. Expectations there were positive due to core drilling
ratios that were better than Honey Branch. According to Har-
ris, it was for these reasons, and the fact that the Company
was young, that no shutdown decision was made at the end
of 1988.
By January 1989, coal removal within the original Honey
Branch permit had ended. In February, Open Fork operations
began. That month a loss was sustained primarily due to de-
velopmental costs in starting in a new area, such as the
building of new roads. These preliminary operations foretold
that March would bring the first full month of production.
The quarterly profit-and-loss statement ending March 31
showed a budgeted output from the new Open Fork permit
area of 37,500 tons, with only 23,555 having been actually
produced. This translated into a net loss for the month of
$293,503, against a budgeted loss of $2481.10
Harris attributed these losses to excessive overburden, ex-
plaining as follows:
[W]hen we went into Open Fork, we were mining two
seams, we had Buffalo creek and we had a Colbert
Seam. We had to move up off of our Buffalo Creek
seam because it got so thin that we couldn’t load this
coal out, and we done covered our pit, it wouldn’t be
up there, so we moved upon our other seam, we had
only one seam of coal to mine in there, and it wag at-
tributed to the ratios. It was the amount of over-burden
versus tons of coal.
The poor productivity at Open Fork and resulting financial
record, according to Harris, was not explainable in terms of
wintry weather which he described as ‘‘good’’ for that time
of year.11
Harris states that cost and output figures are computerized
on a daily basis and, from them, he learned in the month of
March that profitability was on a slide. He testified that, at
regular weekly cost meetings with supervisors, he reported
that the recent improvement had been followed by a down-
ward shift. To avert this trend, he initially reacted by, on
March 22, promoting Alan Roe to the position of general su-
perintendent. At the time, Roe was instructed to improve pro-
duction any way he could by 5000 tons per month, allegedly
giving him 30 days to show an improvement or the job
would be shut down. At Harris’ direction, Roe then con-
ducted a series of meetings with supervisors, advising them
that they would have to increase tonnage or the mine would
close.12 There is no evidence whatever that the need for
greater productivity was ever communicated to rank-and-file
employees, either in terms of possible shut down or as an
abstraction.
Harris claims that after he met with Roe, he continued to
monitor the Honey Branch operation, finding that production
was not increasing and losses were mounting slightly more
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 R. Exh. l(d). This document obviously was not available on April 19.
14 In assessing Harris’ testimony and the documents showing losses, concern
arises out of the relationship between the Respondent and the sole purchaser
of its output. Obviously the price per ton is the single-most important factor
determining profitability. The question of whether the sums advanced to the
Respondent was consistent with market prices and competitive was not liti-
gated. However, the fashion in which Respondent’s coal is marketed creates
skepticism in this connection. Thus, P & C Bituminous Coal of Nashville,
Tennessee, purchases the entire output of Cub Branch at a fixed price $14.50
per ton. Harris was formerly employed by that firm. Both P & C and Cub
Branch are subsidiaries of Penn Holdings. In fact, Harris testified that on April
19, he contacted three members of the Respondent’s board of directors, who
were affiliated with either P & C or Penn Holdings. Harris stated that he took
this step because ‘‘They are the people that I answer to.’’
15 The Respondent’s computer capabilities permit access, on a current daily
basis, to ‘‘daily cost reports.’’ See, e.g., R. Exh. 4. However, that of April
16, was the only financial document reviewed by Harris on April 19 before
deciding to close down. He apparently did not have the presence of mind to
make a hard copy of that data, as it was not presented in evidence.
16 Thus, Jesse Stroud was hired to perform reclamation work at Honey
Branch on June 14, Denzel Helton, was hired at Bull Branch on July 2, and
Frank Perry was hired at Frank Branch on August 28.
than during the month of March. As matters turned out, the
April profit and loss schedule showed a net 1088 of
$306,846.13
Harris learned of the April 19 incident when Alan Roe re-
ported about 6:30 a.m. that ‘‘Mike Messer had a picket line
at the foot of our Honey Branch operation,’’ and that it was
‘‘about a ten dollar and seventy-five . . . an hour [greaser]
job.’’ Harris instructed Roe to go to the foot of the hill and
see if he could resolve the problem. Roe later reported that
he could not resolve the problem. Harris then contacted
Heatherman, instructing him to take Messer’s brother, Glen
Messer, and Raymond Maynard, to see if they could straight-
en the matter out. Later, Heatherman reported to Harris that
he could not resolve it either. He, too, acknowledged that the
dispute concerned Messer’s claim for the oiler’s job and the
pay increase to the operator’s rate.
After Heatherman’s call, Harris assertedly reviewed our fi-
nancial statements and conditions and concluded that losses
already sustained would not be reversed ‘‘if we weren’t oper-
ating at all.’’ He therefore decided to close the Honey
Branch site. He explained his decision as follows:
After talking to Mr. Heatherman I reviewed our finan-
cial statements and conditions that our Honey Branch
operation wag in, and after looking at—we were losing
money operating, where were we going to be if we
weren’t operating at all, if we were not—our fixed
costs would still continue to go on. So, after looking at
these reports, I decided to close the Honey Branch op-
eration.
Conclusions
The law is not unsympathetic to the fact that business in-
terests might be impaired by a protected work stoppage.14 To
prevent losses, an employer that has not taken unlawful
measures to provoke or prolong a strike is free to replace
strikers permanently and continue operations. It also has a
right to further its position in an underlying dispute by lock-
ing out the entire bargaining unit, while continuing to operate
with temporary replacements. Harter Equipment, 280 NLRB
597 (1986). More relevant to the instant case, however, is
precedent holding that, if the loss of manpower, itself, makes
it economically infeasible to continue operations, the em-
ployer is privileged to close temporarily and shift operations
to an unstuck facility. Armored Transport, 282 NLRB 850
fn. 2 (1987). The law tolerates these actions, even though
detrimental to the strikers’ interests in order to accommodate
the right of management to operate in the face of an eco-
nomic strike. It does not, however, sanction deliberate repris-
als, which are punitive, and not shown to be supported by
specific business exigency.
In this case, Harris’ own testimony demonstrates that the
Honey Branch operation was closed only after it became
clear that the underlying dispute would not be subject to im-
mediate resolution. In the course of that day, Harris com-
mitted several members of his management team, including
Mike Messer’s brother, to the task of resolving the issue, a
step which reflected his expectation that their success would
allow continued operation. Indeed, Harris confirms that he
did not review the financial data, which allegedly prompted
his decision,15 until noon, following Heatherman’s final re-
port that no solution had been attained. Finally, it is not
without significance, that of the 45 employees at that site,
only 12 Honey Branch employees were subsequently rein-
stated by the Respondent. Of this group, only three were
strikers—all rehired after the instant unfair labor practice
charge was filed.16
In this light, it is concluded, at a minimum, that the deci-
sion to close at that time was produced solely by the emer-
gence of the stoppage and the collapse of Respondent’s ef-
forts to end it. In these circumstances, straight application of
Wright Line would end the inquiry. For, the Respondent,
quite plainly, has failed to demonstrate that ‘‘the same action
would have taken place even in the absence of the protected
conduct.’’ 251 NLRB at 1089. However, the Respondent re-
lies on Armored Transport, supra, a case, which, inter alia,
affords employers greater latitude in dealing with the con-
sequences of a protected work stoppage. In that case, the
shutdown was temporary, and coextensive with the period of
the strike. It was deemed legitimate on a showing that cus-
tomers were lost to a competitor because they could not be
serviced from the strikebound facility, as the employer was
unable to hire replacements and could not operate effectively
with supervisors and nonstriking clericals. On these facts, the
Board concluded that the Respondent had the ‘‘right to sal-
vage what business it could given the sudden absence of
drivers at the . . . struck facility.’’ Hence, it was stated that
the action would have been taken ‘‘whether or not the ab-
sence of drivers necessary to operate that facility was due to
their exercise of protected activity.’’ 282 NLRB 850 at fn.
2.
Consistent therewith, the Respondent would fulfill its
Wright Line burden by demonstrating that it would have
closed the mine on April 19 even if manpower had been un-
available for reasons unrelated to Section 7 activity. At the
outset, however, it is important to note that this burden is
more exacting than Respondent assumes. It is not met simply
upon a showing that business losses stood at the foreground
of its decision to close because of strike. As in Armored
Transport, supra, the employer must justify the intrusion on
statutory rights by demonstrating that it was a reasoned act
of business judgment predicated on economic adversities cre-
ated by the stoppage.
61CUB BRANCH MINING
17 Prior to any extraction in the new permit area, core samples were taken.
According to Harris, the resulting engineering report did not reflect the over-
burden ratios later discovered in actual mining operations. Yet, there is no sug-
gestion that the Respondent followed up the preliminary core drilling data by
seeking supplemental testing. This is explainable only in terms of the Re-
spondent’s own optimism that the shift in seams would produce lower ratios.
Were this not the case, considering the daily losses incurred on this tract, I
do not believe that the Respondent would gamble blindly into the future by
proceeding without seeking scientific explanation of the breakdown in earlier
core samplings and, more importantly, an assessment of the extent to which
the adverse ratio affected the balance of the tract.
18 The General Counsel notes that accumulated reclamation demands acted
on in early 1989 would have contributed to the adverse productivity picture
at Honey Branch. Thus, it appears that, during earlier periods, reclamation ef-
forts at that site had been deferred to an extent attracting the interest of regu-
lators from the West Virginia Bureau of Natural Resources. Roe admitted that,
prior to March 22, this work had backed up in substantial amount, and quite
a bit remained to be done.
19 As previously indicated, on Harris’ instruction, Roe, after March 22, held
meetings with supervision, relaying that, ‘‘if we didn’t get the production up
by the end of the month that we would be more than like be gone and our
jobs would be gone.’’ Harris’ direction to Roe, so early in the transition be-
tween sites and seams, is taken as an effort to prod supervision, and I did not
believe that, at that juncture, he held any fixed intention to close if the produc-
tivity gains could not be achieved.
20 No contention is made by the Respondent in this case that its action con-
stituted a permanent partial closing, subject to the strictures of Textile Workers
v. Darlington Mfg. Co., 380 U.S. 263 (1965). There, the Court endorsed man-
agement’s right to close its entire business, even if motivated solely by union
considerations. At the same time, however, it held that ‘‘[a] partial closing is
an unfair labor practice under section 8(a)(3) if motivated by a purpose to chill
unionism in any of the remaining plants and if the employer may reasonably
have foreseen that such closing will likely have that effect.’’ 380 U.S. at 275–
276. Having failed to raise the issue, the record is not benefitted by any objec-
tive showing that firm steps were taken to liquidate mineral interests held by
the Respondent at the Honey branch site. NLRB v. Fort Vancouver Plywood,
604 F.2d 596 (9th Cir 1979). Not only are we left with Harris’ characteriza-
tions that the step was permanent, but, without evidence that Respondent took
measures which made that action irrevocable, there is only indefiniteness.
Moreover, absent assertion of the Darlington defense, there was no need to
challenge Harris testimony concerning permanence. In any event, considering
the close proximity between Honey Branch and Paint Branch, the interchange
of personnel between those locations, and the subsequent employment of
Honey Branch dischargees at Paint Branch, the Respondent could readily per-
ceive that the closing would chill concerted activity among employees at this
other operating site. George Lithograph Co., 204 NLRB 431 (1973); Bruce
Duncan Co., 233 NLRB 1243 (1977). My finding in this respect is enforced
by testimony by strikers Messer, Stacy, Stroud, Jack Maynard, and Jimmy
Brown that, after their layoffs, they were told by Respondent’s agents that they
would not be employed at Paint Branch or any other of Respondent’s loca-
tions. Similar statements were attributed to Roe by four nonstriking, currently
employed Paint Branch employees (Jimmy Maynard, Lester Perry, William
Caldwell, and George Howell). The Respondent’s denials are rejected. I prefer
the common pattern of conduct imputed to its officials by the General Coun-
sel’s evidence which included neutral, incumbent employees who had no ap-
parent reason to fabricate testimony prejudicial to their immediate employer.
Their credited accounts are indicative of a desire to seize on the closedown
as a vehicle for chilling any similar uprising among employees elsewhere.
Thus, if raised by the Respondent, it would be concluded that Darlington,
supra, presents no impediment to the critical allegation in this case.
This standard has not been met here. Simply put, the proof
offered by the Respondent is too generalized to override dis-
criminatory intent. It is possible to read this record and walk
away with the understanding that the strike was neutral to
Respondent’s economic posture. Thus, there was no indica-
tion, and I am at a loss to understand the savings, long run
or short term, that Harris expected to realize through his de-
cision. Considering the labor intense nature of this business,
it is fair to assume that these expenses would have been sus-
pended during the walkout, and others would be born even
with closure. Among the tradeoffs unmentioned by the de-
fense was the matter of site development. These costs al-
ready had been sustained and, presumably, written off
against past revenues. Harris does not disclose that he even
considered the option of closure against this investment.
The absence of concrete explanation as to how the stop-
page worsened the Respondent’s cost position or made a
turnaround less likely is complicated by the fact that Honey
Branch, with the exception of a few months, had always op-
erated with paper losses. Yet, as of April 19, having survived
the worst conditions for stripping coal, there would seem to
have been nothing but hope for this operation in the near fu-
ture. Optimism on the Respondent’s part is suggested by the
fact that in April, within 2 weeks of the shutdown, two addi-
tional dozers were delivered to the Honey Branch site. More-
over, because the overburden problem was not evident in
earlier engineering reports, one is given to wonder whether
the Respondent did not at that time assume that the imbal-
ance was limited to certain strata, and would ease somewhat
as operations moved to unmined sectors of the new permit.17
Absolutely certain is the fact that overburden excesses would
become more manageable and cut less sharply into produc-
tivity with the arrival of warmer, drier conditions.
In the final analysis, the defense has left reprisal as the
dominant, credible explanation for its precipitant action. The
closedown occurred in the midst of spring, on the heels of
nonrecoverable site development costs and catchup expendi-
tures to meet state demands in the area of reclamation.18 At
the time, Open Fork startup was in its infancy and produc-
tivity on that permit had not reached optimum levels. Harris
on April 19 exhibited a decisiveness which contrasts dramati-
cally with his posture before the work stoppage. Thus, during
the months producing the poorest conditions for surface min-
ing, operations were permitted to run their course as he
watched losses mount.
Against this background, I am unwilling to conclude that
the Respondent has demonstrated to any persuasive extent
that closure of the Honey Branch mine was justified by any
extraordinary economic crunch produced by the failure of its
employees to report for work on April 19.19 Accordingly, by
terminating the employees at that time, even if merely rep-
resentative of accelerated action, the Respondent violated
Section 8(a)(1) of the Act.20
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
closing its Honey Branch mine, and terminating all employ-
ees at that location, in reprisal for a work stoppage protected
by Section 7 of the Act.
3. The above unfair labor practice is an unfair labor prac-
tice having an effect on commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom, and to take certain af-
firmative action deemed necessary to effectuate the policies
of the Act.
The Respondent, having terminated its Honey Branch
mine, and discharged all employees because of a lawful, pro-
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Although the complaint identifies only the strikers as victims of discrimi-
nation, the Respondent’s unlawful conduct equally affected all discharged at
Honey Branch, and in order to effectuate statutory policy, all are encompassed
by the recommended Order.
22 This is an effective alternative to a restoration order. In this case, losses
sustained at Honey Branch give rise to the possibility that such relief would
prove unduly harsh, and that to facilitate reinstatement on that basis ‘‘would
endanger the Respondent’s continued viability.’’ Hood Industries, 273 NLRB
1587 (1985). At the very least, this matter was not litigated fully and, in my
opinion, to entertain it at this stage of the case would prove unfair to the par-
ties and incompatible with sound administrative practice. Both objections were
sidestepped in Hood Industries, supra, in which this question wag revisited in
a separate proceeding, after liability was determined in the underlying unfair
labor practice case. The same accommodation is made by providing the option
to the Respondent.
23 The proposed remedy is subject to certain issues most appropriately suited
for litigation in a compliance proceeding. Thus, it is entirely possible that, at
that time, the Respondent will be able to demonstrate that Honey Branch
would have closed at some point in the future for legitimate reasons. Even
if established, since the dischargees were entitled since April 19 to preferential
hiring to vacancies at the Respondent’s remaining locations, backpay will not
be tolled as to those denied reinstatement, during the interim, to any such va-
cancies. Finally, any reinstatement offered at locations beyond reasonable com-
muting distances from Honey Branch and Paint Branch would not constitute
a good-faith offer sufficient to toll backpay.
24 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
25 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
tected work stoppage, shall be ordered to offer them21 imme-
diate reinstatement to their former positions, discharging if
necessary persons hired after April 19, 1989. To the extent
that vacancies fail to exist in sufficient number to support
compliance with that obligation at the Respondent’s remain-
ing mines, a question arises as to whether the Respondent
ought be directed to restore the status quo ante by reopening
at Honey Branch. In that regard, since collective bargaining
is not involved and there is no bargaining unit to be pre-
served, a remedy is to be fashioned which focuses exclu-
sively on the interests of the discriminatees. Reestablishment
is not necessarily essential to that process. Accordingly, Re-
spondent will be afforded the option either of reopening
Honey Branch or effectuating reinstatement at its other near-
by mines.22 Whatever its choice, the Respondent shall make
whole employees by payment to each a sum of money equal
to the amount they would have earned as wages and other
benefits from April 19 to the date of bona fide reinstate-
ment.23 Backpay shall be computed on a quarterly basis as
prescribed in F. W. Woolworth, 90 NLRB 289 (1950), with
interest as authorized in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended24
ORDER
The Respondent, Cub Branch Mining, Inc., Kenova, West
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging employees from engaging in concerted
activity for purposes of mutual aid or protection by closing
a mine, laying off permanently, or in any other manner dis-
criminating with respect to their wages, hours, or terms and
conditions and tenure of employment.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action deemed necessary
to effectuate the policies of the Act.
(a) Offer immediate reinstatement to all employees dis-
charged on April 19, 1989, discharging if necessary persons
hired after that date and make them whole for losses sus-
tained by reason of the discrimination against them, with in-
terest, as set forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
and its agents for examination and copying, all payroll
records, social security records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this order.
(c) Post at its facilities in Wayne and Lincoln Counties,
West Virginia, copies of the attached notice marked ‘‘Appen-
dix.’’25 Copies of the notice, on forms provided by the Re-
gional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discourage you from engaging in concerted
activity for purposes of mutual aid or protection by closing
a mine, laying off permanently, or in any other manner dis-
criminating with respect to your wages, hours, or terms and
conditions and tenure of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of rights set forth at
the top of this notice.
WE WILL offer immediate reinstatement to all Honey
Branch employees that we terminated on April 19, 1989, dis-
63CUB BRANCH MINING
charging if necessary persons hired after that date and WE WILL make them whole for losses sustained by reason of the
discrimination against them, with interest.
CUB BRANCH MINING, INC.