Davis Coal Company

National Labor Relations Board - Board Decisions

Jul 13, 1983

266 N.L.R.B. 1072 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis Coal Company and Jesse Muncy and Bill
Hall and James F. Mollett. Cases 9-CA-16228,
9-CA-16301, and 9-CA-16375
13 July 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On 4 November 1982 Administrative Law Judge
Burton S. Kolko issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge,
as modified herein, and to adopt his recommended
Order, as modified herein.
Respondent has excepted, inter alia, to the Ad-
ministrative Law Judge's finding that it unlawfully
discharged employee Dennis Swisher "because he
was going to try to take the miners out on strike to
protest his job assignment." In this regard, Re-
spondent argues, inter alia, that the Administrative
Law Judge erred in failing to find that it would
have discharged Swisher for leaving his job prior
to the end of his scheduled shift and refusing to do
assigned work even absent his efforts to "take the
miners out on strike." For the reasons set forth
below, we find merit in this exception.
As the Administrative Law Judge found, Swish-
er was discharged on 27 October 19802 following a
conversation with Richard Brown, Respondent's
mine foreman, about his being removed from "his
job" as motorman on the third shift and being as-
signed to the job of shoveling the belt line. 3 Ac-
cording to the credited testimony, during this con-
versation Swisher stated that, if he were not reas-
signed to "his job" as motorman, he would "ask
i 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 Products.
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have careful-
ly examined the record and find no basis for reversing his findings.
2 All dates used hereinafter shall refer to the calendar year 1980 unless
otherwise specifically indicated
3 At the time of his discharge, Swisher was classified as a "general la-
borer." As a general laborer, Swisher was assigned to various jobs, in-
cluding the job of "motorman" and the job of "shoveling the belt line."
A "motorman" drives the vehicle which transports men and supplies into
the mine: "shoveling the belt line" consists of shoveling the coal which
has fallen to the mine floor from the conveyor belt which carries the coal
out of the mine.
the men to strike to help me get my job back"; in
response, Brown stated, "[W]ell, if you ask them to
strike, then I am going to fire you." Thereafter,
Swisher went to get committeemen Bill Muncy and
Bobby Marcum. 4 When Swisher, Muncy, and
Marcum entered the mine office, Brown was talk-
ing to Don Davis, Respondent's general manager;
upon their arrival, Davis told Swisher that he was
"fired for walking off the job."
Based upon the foregoing, the Administrative
Law Judge concluded that Respondent's asserted
reason for discharging Swisher was a pretext and
that its true reason was its belief that Swisher was
attempting to "enlist his fellow workers' help in
protesting [his] job assignments." We do not agree.
The lawfulness of Swisher's discharge must be
viewed, not in the narrow context of the circum-
stances immediately surrounding his discharge, but
rather in the broad context of his numerous periods
of employment by Respondent. In this regard the
record shows that Swisher has been employed by
Respondent on at least four separate occasions, the
last beginning in August and ending with his dis-
charge on 27 October. Of his three previous peri-
ods of employment, two ended with his discharge
for being under the influence of drugs; on the other
occasion, Swisher quit rather than perform the job
of shoveling the belt line. Swisher was hired in
August only after his grandfather interceded on his
behalf with Winford Davis, Respondent's president
and a personal friend; Swisher's grandfather ex-
plained that Swisher needed a job in order to be
able to receive probation rather than a jail sentence
for a drug-trafficking conviction in Kentucky.
From the time he was hired in August until his
discharge on 27 October, Swisher was classified as
a general laborer. As a general laborer, Swisher
was assigned various jobs, including the job of mo-
torman and the job of shoveling the belt line.
Whenever Swisher was assigned the job of shovel-
ing the belt line, however, he would complain to
his superiors; indeed, on at least one occasion,
Swisher pounded his fist on Don Davis' desk and
stated that he was not going to shovel belt lines
any more. Thereafter, as the Administrative Law
Judge found, Swisher began to feign illness in
order to avoid performing this work. In this
regard, the record shows that, on his last 2 days of
employment, Swisher was assigned the job of shov-
eling the belt line and, on each day, he left work
early feigning illness.
In view of the foregoing, we find that Respond-
ent would have discharged Swisher for his repeat-
4 Committeemen were employees designated by their fellows to pursue
grievances with management.
266 NLRB No. 190
1072
DAVIS COAL CO.
ed, insubordinate refusals to perform his assigned
work of shoveling the belt line even absent his ef-
forts to "enlist his fellow workers' help in protest-
ing [his] job assignments." Accordingly, we shall
dismiss this aspect of the complaint.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Davis Coal Company, Kermit, West Virginia, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraphs 2(a)
and (b):
"(a) Offer Jesse Muncy, Raymond Fillinger,
Cecil Marcum, Jackie Spaulding, Charles Fillinger,
Kessler Marcum, Bill Muncy, Charley Conley,
Roger Lee Williams, Fred Fitchpatrick, Bobby Lee
Marcum, Ernest Sturgill, and James F. Mollett im-
mediate and full reinstatement to their former posi-
tions or, if such positions no longer exist, to sub-
stantially equivalent positions without prejudice to
their seniority or other rights previously enjoyed,
and make them whole for any loss of earnings they
may have suffered because of their discharges, with
interest, in the manner set forth in the section of
the Administrative Law Judge's Decision entitled
'The Remedy.'
"(b) Expunge from its records and files any ref-
erences to its unlawful discharges of the above-
named employees, and notify them in writing that
this has been done and that evidence of these un-
lawful discharges will not be used as a basis for
future personnel action against them."
2. Substitute the attached notice for that of the
Administrative Law Judge.
' In view of our finding that Respondent lawfully discharged Swisher,
it follows that the strike which began thereafter was, at the outset, eco-
nomic in nature; however. this strike was converted into an unfair labor
practice strike on 4 November, when Respondent began its unlawful
campaign of dismissing the striking employees.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represent-
atives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge employees because
of their union or other protected concerted ac-
tivities.
WE WILL NOT require that employees prom-
ise not to strike, nor will we deduct or with-
hold from the wages of employees who go on
strike any monetary penalty.
WE WILL NOT withhold or deny benefits
that employees have earned if they go on
strike.
WE WILL NOT make statements that threaten
or coerce employees in the exercise of the
rights guaranteed them by the Act.
WE WILL NOT display weapons in the pres-
ence of employees who are picketing peaceful-
ly.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by the Act.
WE WILL offer the following employees re-
instatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority
or other rights and privileges, and WE WILL
make them whole, with interest, for any loss
of earnings they may have suffered because of
their discharges: Jesse Muncy, Raymond Fil-
linger, Cecil Marcum, Jackie Spaulding,
Charles Fillinger, Kessler Marcum, Bill
Muncy, Charley Conley, Roger Lee Williams,
Fred Fitchpatrick, Bobby Lee Marcum, Ernest
Sturgill, and James F. Mollett.
WE WILL expunge from our records and
files any references to our unlawful discharges
of the above-named employees, and WE WILL
notify them in writing that this has b'een done
and that evidence of these unlawful discharges
will not be used as a basis for future personnel
action against them.
DAVIS COAL COMPANY
1073
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
BURTON S. KOLKO, Administrative Law Judge: The
Davis Coal Company operates a single shaft mine in
Kermit, West Virginia.' In the fall of 1980 Dennis
Swisher was discharged for "walking off the job." Sev-
eral other miners were arriving as Swisher was being
fired, and they immediately went on strike and com-
menced picketing to support Swisher's efforts to get his
job back. After about a week's time some of the picket-
ing employees were fired, and after a month's time the
rest were fired.
The General Counsel's complaint in effect seeks rein-
statement with backpay for Swisher and the other fired
employees, and a cease and desist order against Respond-
ent's threats, statements, and reprisals that accompanied
the firings. I grant the relief sought.
I. THE DISCHARGE OF DENNIS SWISHER
On October 27, Respondent discharged employee
Dennis Swisher. Swisher had been employed several
times by Respondent, the last time for approximately 2
months prior to the date of his discharge. At the time he
was discharged Swisher normally performed the job of
motorman on the third shift. On the evening of October
26, Swisher arrived approximately an hour late for
work2 and was assigned to perform the work of shovel-
ing the belt line, which brings out coal from inside the
mine. Swisher shoveled the belt line until approximately
6:45 a.m. at which time he said he was ill and requested
and received permission to leave the mine from Third-
Shift Belt Foreman Eugene Hamb. Hamb advised Swish-
er that he would make a notation on Swisher's timecard
that he was sick. Upon leaving the mine, Swisher talked
with employees Bobby Marcum and Bill Muncy in the
employees' dressing area and advised them that his mo-
torman position had been taken away from him. Swisher
then met with Mine Foreman Richard Brown outside the
mine office. They then had a discussion about Swisher
being removed from the motorman position and being re-
quired to shovel the belt line. The conversation terminat-
ed with Swisher stating that if he did not get his motor-
man job back he would ask the employees to strike for
that purpose. Brown replied that if he asked the employ-
ees to strike he would be fired. Following this conversa-
tion, part of which was heard by General Manager Don
Davis as he was arriving, Brown proceeded to the mine
office where he was later joined by Swisher, Muncy, and
Marcum. Brown and General Manager Don Davis were
already in the mine office when Swisher and the employ-
ees arrived. A brief conversation ensued with Davis tell-
ing Swisher that he was "fired for walking off the job."
Swisher replied that he would ask the employees to sup-
port him in getting his job back. At that point all the em-
During the 12 months preceding the consolidated complaint Re-
spondent sold and shipped products, goods, and materials valued over
$50,000 to other West Virginia nonretail enterprises that annually sold
and shipped to points outside West Virginia goods and materials valued
over $50,000.
2 Although Swisher was late for work on the last day of his employ-
ment, Respondent does not contend that this had anything to do with his
discharge.
ployees who were present for work on the day shift
went "across the road" and refused to work.
Swisher had made similar complaints concerning job
assigments in the past, and on at least two other occa-
sions to Don Davis' knowledge he had attempted to get
the employees to go out on strike.
Given this background, the General Counsel argues on
brief that Davis fired Swisher "because Davis believed
that Swisher would again, as he had in the past, attempt
to get employees to strike concerning a complaint he had
about his new job assigment. " 3
Respondent argues that Don Davis was not without
some reason in being suspicious about Swisher's sudden
appearance out of the mine. Swisher had been a trouble-
some employee in his previous employment episodes
with the Company, and had been previously discharged
for refusing to do his job and for being under the influ-
ence of drugs. Indeed, his reemployment at the mine had
occurred only after Swisher's grandfather had interceded
with Respondent President Winford Davis, a friend, on
Swisher's behalf. In this light I can understand how Don
Davis would "see red" when the "ungrateful" Swisher
was feared to be instigating still another strike. But such
equities aside, I find that Swisher was on a mission to
enlist his fellow employees' aid in protecting his job as-
signment and got fired for that reason.
As the Court of Appeals for the Fourth Circuit, where
this arises, has recently stated:
To establish that a single employee is engaged in
protected concerted activity, the evidence must
show that he is seeking either to enforce a bargain-
ing agreement, to induce group action, or to act on
behalf of other employees. Personal concerns or
missions are insufficient to demonstrate concerted
action. 4
There being no collective-bargaining agreement,
Swisher cannot be said to be attempting to enforce its
provisions. Nor was he acting for other employees.
Thus, to take his leaving the mine out of the category of
a mere personal mission Swisher must be found to have
been seeking to induce group action. From Swisher's
previous conduct concerning this job assignment, I draw
the inference and find that he was.
Swisher was no stranger to the job of shoveling the
belt line. 5 He had been fired once before for not per-
forming that assigned task. On that occasion he had tried
to set up a picket line in protest, but failed because by
that time the other men were already inside the mine. On
another occasion several weeks before, he pounded on
Don Davis' desk and complained about having to shovel
the belt line. And at another time, Don Davis overheard
Swisher complaining to a fellow employee. In these in-
3 G.C. br., p. 12.
Tyler Business Services v. NLRB, 680 F.2d 338, 339 (4th Cir 1982).
See also Blaw-Knox Foundry v NLRB, 646 F.2d 113 (4th Cir. 1981);
Krispy Kreme Doughnut Corp. v. NILRB, 635 F.2d 304 (4th Cir. 1980); and
Joanna Cotton Mills v. NLRB, 176 F.2d 749 (4th Cir. 1949).
s "Shoveling the belt line" means shoveling the coal that has fallen off
the conveyor belt to the mine floor In Don Davis' words "it is nasty.
Very unpopular."
1074
DAVIS COAL CO.
stances Swisher was emphatic that he did not want to do
that work. In effect Swisher's attitude crystalized around
his perception that he was doing more than his share of
that task.6
Swisher had, in fact, been assigned to shovel the belt
line the day before his discharge, but worked for only 2
hours before punching out sick. Swisher's testimony on
that incident was:
I wasn't sick. I was almost sick. In other words, I
was feeling chills . . . I was running a temperature
you might say. I am no doctor but I was still ill,
and so, I did what I could do; as long as I could do
it, and then when I felt I couldn't any more then I
came outside.
This tracks Swisher's testimony about his getting sick
one-half hour before the shift change on the day he was
discharged. This testimony, and my observation of
Swisher's demeanor in giving it, convinces me that
Swisher's episodes of "sickness" were his way of mani-
festing what he earlier had told Don Davis; i.e., that he
was not going to shovel belt lines any more.7
The upshot is that when Swisher clocked out "sick"
before the shift changed on the day of his discharge, he
had it in mind to enlist his fellow employees' help in se-
curing his other job back-running the transport
"motor" into and out of the mine. In his eyes, that was
his permanent job. His actions that night and the follow-
ing day make that conclusion clear:
(1) As soon as he found out after his late arrival for
work that he was to shovel the belt, he phoned his com-
mitteeman8 to complain.
(2) After leaving the mine just before the shift change,
he went to the dressing room and told the incoming shift
"that I had a disagreement that I wanted to straighten
out with Richard Brown [and] that it might not be set-
tled, for them to wait and see what the outcome was
before they went to work."
(3) He then went outside to complain to Foreman
Brown, a conversation that was in part overheard by
Don Davis. It was in this conversation that Brown told
Swisher that if Swisher pulled the men out on strike he
would be fired.
(4) Thereupon Swisher returned to the dressing room
to get the committeemen, Bill Muncy and Bob Marcum.
They went to the mine office, whereupon Don Davis
discharged Swisher.
(5) Swisher, the committeemen, and the rest of the day
shift went on strike "across the road," picketing initially
for "two or three hours."
(6) Swisher then went home and returned in the after-
noon and at night to picket. He did not go to the doctor.
The picketing continued until April 1981, when the
strike petered out, although Swisher did not picket after
the end of December 1980.
s Assignments for shoveling the belt line were usually made to the
"general" workers, such as Swisher; often the foreman helped shovel.
7 While Swisher denies that he said that or pounded on Don Davis'
desk, he does not deny complaining about what he felt was discriminato-
ry treatment. I credit Don Davis' version of these episodes.
' Committeemen were employees designated by their fellows to pursue
grievances with management.
In sum, while it is clear that Swisher's annoyance at
being directed on occasion to shovel the belt line was a
personal grievance, the event causing his discharge-his
leaving the mine early-was not a personal mission but a
calculated plan to buttonhole the arriving day shift
before they were in the mine and take them out on strike
to protest his job assignment. And in fact, he succeeded
in getting the men to strike with him. As it happened,
Respondent's action in firing Swisher changed the pur-
pose of the strike, for they then were striking to protest
Swisher's discharge, and turned an inchoate economic
strike into an unfair labor practice strike.9 Swisher's at-
taining their support on the job assignment question indi-
cated their "common concern" over the issue, and thus
its concerted nature. See Air Surrey Corp., 229 NLRB
1064 (1977), and W. C. Electrical Co., 262 NLRB 557
(1982); but see Comet Fast Freight, 262 NLRB 430
(1982).
Respondent argues that it was justified in discharging
Swisher because "he was a wretched employee." I find
that such justification is a pretext and that Respondent
discharged Swisher because he was going to try to take
the miners out on strike to protest his job assignment.
Don Davis admitted that, as he overheard Swisher and
Foreman Brown arguing about shoveling the belt line, "I
knew . . . that he was out of the mine for other reasons
than being sick or whatever." His suspicions having been
aroused about what mischief Swisher might be up to this
time, Davis' fears were confirmed when Brown came
into the office after threatening Swisher. As Swisher cre-
dibly testified, when he entered the mine office after
leaving Brown and rounding up the committeemen,
Davis and Brown were talking. While Davis denied that
he knew what Brown and Swisher had been talking
about, it strains credibility that Brown would not have
been asked by Davis about that conversation. As Davis
admitted, Brown was a new foreman and Davis was cu-
rious how he would handle Swisher. Having learned that
Swisher was talking about starting another strike, Davis
reacted by firing Swisher within moments after Swisher
entered the mine office. While Davis' stated reason to
Swisher was that Swisher walked off the job and refused
an assignment, the real reason was that "troublemaking
Swisher" was going to start another strike, and the Com-
pany did not want that "trouble" again.' 0
Respondent also argues that Swisher's conduct leading
to his discharge was not protected activity. In effect Re-
spondent is noting the Fourth Circuit's "distinction be-
tween single refusals to work over working conditions
and recurrent refusals to perform a particular job . . .
the first being protected activity, the latter not being
protected." Excavation-Construction v. NLRB, 660 F.2d
1015, 1021 (4th Cir. 1981). Thus, Respondent argues that
i "It is well settled that a strike is an unfair labor practice strike 'if an
unfair labor practice had anything to do with causing the strike.' \NLRB
v. Cast Optics Corp., 458 F 2d 398, 407 (3d Cir. 1972), cert. denied 409
U.S. 850." Tarlas Meat Co., 239 NLRB 1400. 1401. fn. 6 (1979).
'0 It is just as well that Respondent does not argue that Davis enter-
tained a good-faith belief that Swisher was guilty of misconduct by being
out of the mine, since the General Counsel has established that Swisher
had his foreman's permission See Co-Con. Inc., 238 NLRB 283. 288
(1978).
1075
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swisher was fired by Don Davis not because Swisher
had left his job without permission, but for Swisher's re-
peated refusal to do assigned work, i.e., shovel the belt
line. But Respondent admits that "[i]mmediately upon
entering the office, Swisher was discharged by Davis for
leaving his job before the end of the scheduled shift time
and refusing to do assigned work." Brief at p. 8. As I
have found, the "reason" was pretextual. Swisher's mis-
sion being to enlist his fellow workers' help in protesting
job assignments, it follows that he was engaging in pro-
tected activity. Circle Import Export, 244 NLRB 255,
258-259 (1979).
11. RESPONDENT'S DISCHARGE OF THE PICKETERS
For several months after October 27 various employ-
ees of Respondent picketed outside the mine site. Some
employees were more active in the strike than others.
According to Winford Davis, there were 8 to 10 em-
ployees who were present at the picket line most often.
Davis testified that Bill and Jesse Muncy, Raymond and
Charles Fillinger, Kessler and Cecil Marcum, Charley
Conley, and Jackie Spaulding were on the picket line
several times during the first few days of the strike.
Davis was also aware that other employees were at the
picket line on various occasions, including Roger Wil-
liams, Ernest Sturgill, James Mollett, and Bobby
Marcum. Fred Fitchpatrick also was in the vicinity of
the picket line with the pickets on a few occasions. In
any event, none of these individuals crossed the picket
line to return to work during the strike.
On November 4, Winford Davis called a meeting of
employees who were not picketing but had not returned
to work. This was held at the mine office, at which time
Davis informed the employees that anyone who wanted
to return would be put on salary and the others would
be laid off. He admivted instituting the salary pay plan to
enable the employees to feel better about returning to
work during the strike.''
Conley was apparently supposed to attend this meeting
but arrived too late to do so. However, he did have a
conversation with Don Davis on this date at the mine.
Davis told him that Respondent was "bringing every-
body back that would sign a paper, to go on salary."
Davis further stated that the meeting did not concern
Conley as he was one of the eight who had been fired.
Nevertheless, Davis told Conley he could return to work
that night. Conley returned to the mine that night but re-
fused to cross the picket line.
On November 4, Davis met with the Muncys and the
Fillingers in the mine office several times. They asked
Davis for the paychecks and bonus and vacation checks
owed to them for the period they had worked prior to
the strike. His reply was that the only way they would
get their paychecks was if they signed quit slips. Howev-
er, after discussing the matter they again talked with
Davis and informed him that if they were paid in full
iI Of the witnesses who testified about this meeting, including Winford
Davis, only Don Davis recalled it as being in late rather than early No-
vember. I credit the preponderate testimony, although the date itself is
irrelevant since it is certain that the meeting was held in the critical Oc-
tober 27-December 1 period.
that they would go home and give him no problems.' 2
However, Davis refused to pay the employees in full,
giving them only one paycheck and one coal bonus
check. He refused to give them their Christmas bonus,
vacation pay, and their last coal bonus check. The em-
ployees refused to accept Davis' offer and refused to quit
their employment. At one point during these various
meeting with the Muncys and Fillingers, Davis told them
that he knew where everyone lived, that it was a long,
dark road from the mine to Logan, West Virginia, and
that they had better watch over their shoulders. Ray-
mond Fillinger responded that he felt that was a threat
and Davis replied that it was. These employees did not
sign quit slips and continued to picket at the mine site.
On November 4, Winford Davis also had a conversa-
tion with employee Cecil Marcum in the vicinity of the
picket line.13 Marcum inquired about obtaining his pay-
check. He also asked Davis if, as he had heard, he had
been fired due to the picket line. Davis replied that
Marcum had in fact been fired over the picket line.
Davis told Marcum to come to the office and he would
be given his paycheck but that he could not get his coal
bonus check as Davis was holding it for a strike fund.
Later that day, Marcum went to see Davis to get his
paycheck. His brother, Kessler Marcum, was also
present. Cecil Marcum asked about his paycheck and
Davis replied that he had to sign a quit slip before he
could get his paycheck. Cecil Marcum also asked if
Davis would write out a reason as to why he was dis-
charged, to which Davis replied that he could not do
that but that Marcum was "fired over the picket line."
On the morning of November 5, Winford Davis had a
conversation with certain of the employees who were
picketing outside the mine office. Swisher and the Fil-
lingers were present. Swisher approached Davis and
asked him if he knew that his daughter had been shoot-
ing at the picketers that night. Davis replied that he was
aware of the shooting and stated that, if it had been him,
he would have "blown [Swisher's] f- brains out."
Sometime around the middle of November, several of
the employees went to the mine office to talk with Win-
ford Davis. The Fillingers, the Muncys, the Marcums,
and Conley were present during the conversation. They
asked Davis whether they were going to get the money
they felt they were owed. David replied that he could
not pay them in full and that he would not pay them any
more than the amounts paid during their prior meeting
on November 4. Davis suggested that he give some of
them a Christmas loan. During the conversation, Davis
was asked by Jesse Muncy why they had been fired. His
reply was that they were all fired because they had set
up a permanent picket line or been on the picket line.
Additionally, Respondent attempted to get an injunc-
tion against those employees who were picketing at the
mine. A hearing was conducted in the state court on No-
12 Davis had told Jesse Muncy that the employees were causing him
problems just by being on the picket line
13 Marcum testified that the conversation occurred on or about Octo-
ber 5. However, it is clear from his testimony that this conversation took
place after the beginning of the strike and, from the record as a whole,
that the conversation took place on or about November 4.
1076
DAVIS COAL CO.
vember 18. At the injunction hearing, Winford Davis
stated that the employees who were picketing were all
fired and would not work for Respondent again.
On November 25, Winford Davis sent letters to 13 em-
ployees who were engaged in the strike (G.C. Exh. 5).
These letters were sent to employees Fitchpatrick, Stur-
gill, Mollett, Bobby Marcum, Williams, and others. The
letters advised the employees that Respondent was open
for production and that, if they did not return to work
on December 1, they would be terminated. None of the
above-named employees returned to work on that date as
the strike was still in progress at the time. When they
failed to return to work on December 1, they were ter-
minated by Respondent.
As the General Counsel argues on brief, several viola-
tions flow from this sequence of events. The most egre-
gious is Respondent's discharge of those who picketed or
refused to cross the picket line at the mine to work.
There is no question that the strike and picketing were
protected concerted activities.
When all the other workmen in a shop make
common cause with a fellow workman over his sep-
arate grievance, and go out on strike in his support,
they engage in a "concerted activity" for "mutual
aid or protection," although the aggrieved work-
man is the only one of them who has any immediate
stake in the outcome. The rest know that by their
action each of them assures himself, in case his turn
ever comes, of the support of the one whom they
are all then helping, and the solidarity so established
is "mutual aid" in the most literal sense, as nobody
doubts. t 4
Of course, after these employees were fired they had an
"immediate stake in the outcome" of their subsequent
picketing. But their firings came because of their picket-
ing on behalf of Dennis Swisher's unlawful discharge,
and in this Respondent clearly erred. 15
The Muncys, Fillingers, and Marcums were terminated
on Respondent's records on November 6, 1980, allegedly
for "interfering with company management." Respond-
ent relies on Winford Davis' conversation with the
Muncys and Fillingers on November 4, where they told
Davis that if they were paid in full they would go home
and give him no problems, as proving that these men
quit. But, as earlier found, they were not paid in full, did
not sign quit slips, and did not go home. They continued
to picket. The Marcums were told when they came for
their checks that they would not be paid in full; they
were told by Winford Davis that they were being fired
because of the picket line. And all these men plus Conley
were told within a couple of weeks thereafter that they
had all been discharged for establishing a picket line at
'" NLRB v. J. Weingarten, 420 U.S. 251, 261 (1974), as held in VLRB
v. Kohler Swiss Chocolates Co., 130 F.2d 503, 505-506 (2d Cir. 1942), cited
in Houston Contractors Assn. v. NLRB, 386 U.S. 664, 668-669 (1967); Ma-
terials Research Corp., 262 NLRB 1010 (1982).
' 5 Laidlaw Corp., 171 NLRB 1366 (19681.
the mine.", Respondent's own actions belie any notion
that these employees quit.
As for the remaining ment 7 as well as the seven just
discussed) Respondent's letter of November 25' 8 made it
clear that if they did not return to work on December I
they would be terminated. They did not return, and
were terminated. They were still on strike. In Respond-
ent's view, it was within its rights, it being "clear from
the case law that the tactical discharge of employees
made during an attempt to obtain a return to work of
striking employees does not constitute an unfair labor
practice." Alas, the cases comprising this phantom case
law are not mentioned by Respondent-indeed no case is
cited on brief-and in fact the case law as it applies here
is the opposite. It is an unfair labor practice to discharge
a striking employee. Vulcan-Hart Corp., 262 NLRB 167
(1982); NLRB v. Fleetwood Trailer Co., 389 U.S. 375
(1967). Thus, it is 13 unfair labor practices to discharge
the men just mentioned who were the subject of Re-
spondent's November 25 letter.
III. RESPONDENT'S COERCIVE STATEMENTS
Respondent also violated the Act when the following
threatening statements were made, in all cases but one by
Winford Davis, to the strikers: (1) that their coal bonus
payments and Christmas bonuses would be withheld; (2)
that they were discharged because of their picketing ac-
tivities; (3) that it was a long dark road to Logan and
everyone knew where they lived; (4) that had it been he
rather than his daughter who had fired shots earlier he
"would have blown [Swisher's] f- brains out" (this
made with his gun visible to the picketers, itself an unfair
labor practice;' 9 (5) that employees not crossing the
picket line to report for work would be laid off (this in
conjunction with the decision to put the picket-line-
crossing employees on salary); and (6) Brown's statement
to Swisher that he would be discharged if he took the
men out on strike. Respondnt's only defense to these is
that the testifying employees are not to be believed. But
I find their testimony entirely credible concerning these
events.
The complaint also alleges that in mid-October, prior
to the Swisher episode that started the strike, Winford
Davis and Don Davis made statements that violate Sec-
tion 8(a)(l). At the time, some employees were striking
concerning the discharge, later rescinded, of Jackie
Spaulding. Winford Davis allegedly told employees, in
response to a statement about the employees attempting
to get the United Mine Workers to organize, that before
he would have a union he would take a bulldozer and
cover up the mouth of the mine. At the same time Don
Davis allegedly told the employees that by striking they
would adversely affect their vacation pay and Christmas
bonus.
1' Davis' denial of the discharge comments is not credited, whereas
the testimony of Jesse Muncy and the Fillingers about their statements is
credited.
" Jackie Spaulding, Roger Lee Williams. Fred Fitchpatrick, Bobby
Lee Marcum, Ernest Sturgill, and James F. Mollerr.
' G C. Exh. 5
'O Highland Plastics. 256 NLRB 146. 160 (1981).
1077
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Winford Davis' statement was testified to by Kessler
Marcum and Charles Conley. Conley had to be led to
recall it, although Marcum remembered it directly, as
well as Don Davis' statement that a strike would hurt
them on the bonus and vacation pay. Winford Davis
denied making the statment, observing without contra-
diction that he no longer thought about the Union after
it dropped bargaining with him after winning an election
in 1978. In the circumstances I credit Winford Davis.
But while Don Davis generally denied threatening em-
ployees during the Spaulding incident, Marcum's testi-
mony stands uncontradicted that Don Davis did tell the
employees that by striking their vacation pay and Christ-
mas bonus accruals would be jeopardized. In effect this
was a threat and, therefore, a violation of Section 8(a)(1).
IV. THE WITHHOLDING OF BENEFITS
Respondent had a practice of encouraging production
through the payment of coal bonuses, made monthly to
employees qualifying for them in the previous month.
The total bonus for a month was one dollar for each of
the tons of coal mined, divided among the employees on
the basis of the ratio of the employee's monthly hours to
the total monthly hours.2 0 To qualify, the employee
must have worked all of the month and all of the suc-
ceeding month up to the date of the bonus payment
(which was toward the end of the succeeding month).
An employee who quit or was fired during this time re-
ceived no bonus payment. As applied to the striking em-
ployees who were discharged by Respondent, they re-
ceived no bonus for September or October 1980, not-
withstanding that they had worked then.21
Similarly, Respondent paid Christmas bonuses to those
employees who were on the payroll when the bonus was
paid in December. The amount of the bonus, $75 per
month, was paid according to the number of months
each employee had worked since the previous Christ-
mas. 22 An employee on strike during any month lost his
eligibility for the bonus for that month. The following,
having been discharged for striking, received no 1980
Christmas bonus: Jesse Muncy, Raymond Fillinger, Cecil
Marcum, Jackie Spaulding, Charles Fillinger, Kessler
Marcum, Bill Muncy, Charlie Conley, Roger Williams,
Fred Fitchpatrick, Bobby Lee Marcum, Ernest Sturgill,
and James Mollett. Bill Hall received just $450. And, of
course, Dennis Swisher received no bonus payments.
Winford Davis testified that an employee had to be at
work at the time the bonus was paid in December in
order to receive it. "Since the individuals described in
the complaint were not working at the time the Christ-
man bonus in 1980 was payable they simply were not en-
titled to it." (Resp. br. at p. 19.) The same was true for
vacation pay, which accrued monthly, and was paid in
June only to those who were working then.
20 The individual employee contracts that contain the coal bonus refer-
ence (called "coal royalty payment" in the complaint) are found as GC.
Exhs. 6(a)-(h).
21 Both Muncys and both Fi:lingers did receive September bonuses,
but none for October The following received no September or October
bonus: Cecil Marcum, Jackie Spaulding, Kessler Marcum, Charles
Conley, Roger Williams, Fred Fitchpatrick, Bobby Marcum, Ernest Stur-
gill, and James Mollett.
22 See G.C. Exhs. (d), (f), and (g).
The Board and the courts have held that the withhold-
ing of benefits to striking employees, "who are distin-
guishable only by participation in protected concerted
activity," is destructive of employee rights under Section
7 of the Act, and, thus, a violation of Section 8(a)(1).2 3
But for the unlawful discharge of the employees who
were on strike in protest of the firing of Dennis Swisher,
those employees would have received coal bonus pay-
ments and the Christmas bonus. Cf. Swift Cleaning &
Laundry, 169 NLRB 359 (1968). Respondent's withhold-
ing of those payments evinced an intent to discourage
employees from exercising their Section 7 rights by co-
ercing them to abandon the strike. Indiana & Michigan
Electric Co., 236 NLRB 986 (1978), enfd. mem. 610 F.2d
812 (4th Cir. 1979). Accordingly, Respondent's withhold-
ing of these bonuses is a violation of Section 8(a)(1). Cf.
W. C. Nabors Co. v. NLRB, 323 F.2d 686, 689-690 (5th
Cir. 1963); cf. Wiegand, supra.
The vacation pay is another matter. It was not due to
be paid until June, well after the strike was abandoned.
No employee received it who was not then working, as
exemplified by Juanita Ferguson, the company's former
bookkeeper, who herself had not received vacation pay,
having quit just a few weeks before it was paid. While
alleged in the complaint, General Counsel does not press
the matter on brief, and I shall dismiss it.2 4
V. THE WITHHOLDING OF WAGES
Since October 1979, Respondent has required its em-
ployees to sign individual contracts of employment. 25
The General Counsel's complaint alleges that the fol-
lowing contract language violates the Act:
Employee agrees not to cause or participate in any
unauthorized strikes. If he does so, he will agree to
pay the company twenty dollars ($20.00) for each
day and every day this company loses work due to
such work stoppage. Employee authorizes company
to withhold from his pay that which is due or be-
comes due.
All employees were required to sign these contracts to
be able to work at Respondent, and the contracts were
in effect during the 1980 time period that occupies this
Decision. Indeed, the contract provision was applied to
employees who participated in the Dennis Swisher strike.
The General Counsel alleges that "[play was withheld at
the rate of $20 per day from the checks of Bill Hall and
other employees who returned to work after a period
when they had honored the picket line." (Br. at p. 15.)
e2 Duncan Foundry & Machine Works, 176 NLRB 263, 264 (1969);
NLRB v. Great Dane Trailers, 388 U.S. 26, 32 (1967); E L. Wiegand Div.
v. NLRB, 650 F.2d 463 (3d Cir. 1981).
"' As pointed out in Wiegand, supra, "The test in deciding if benefits
have accrued is whether they are due and payable on the date on which
the employer denied them" 650 F.2d at 469. Here the coal bonuses pay-
able in November and December for the previous months had accrued to
the striking workers, who had worked in those prior months. And, too,
the Christmas bonus had accrued for all of the months beginning the pre-
vious December. But not so the vacation bonus, no portion of which was
"due and payable" while the workers were on strike.
25 G.C. Exhs.
6
(a)-(n).
1078
DAVIS COAL CO.
Respondent denies neither the existence of the con-
tracts nor the withholding of $20 a day from Bill Hall
and others. It does deny that employees were forced to
sign them and that the contracts were illegal.
As for the "forced to sign" issue, either the employees
signed the contracts or they did not work. so that is
really a false issue. What is more germane is Respond-
ent's argument that "(t]he mere fact that this particular
provision was contained in a contract between an em-
ployee and employer [instead of one between a labor or-
ganization and an employer where it would be valid]
should certainly yield the same result, that is, that this
provision is permissible and does not constitute an unfair
labor practice." (Br. at p. 16.)
While Respondent's brief cites no cases to support its
contention that if a labor organization can waive the
right to strike so can individual employees, the General
Counsel correctly argues that since the Board's earliest
days such a limitation on individuals' right to strike was,
in the later words of the Supreme Court, 26 "inherently
destructive of employee interests" by eliminating one of
their most effective means for achieving the goals sought
by their organizing. Arcade-Sunshine Co., 12 NLRB 259
(1939); Douglas Aircraft Co., 18 NLRB 43 (1939); Great
Western Mushroom Co., 27 NLRB 352 (1940). Thus, it is
a lame excuse to say, as Respondent does, that such con-
tracts were necessary to prevent employee work stop-
pages, since the very strike activity aimed at is a basic
employee right under Section 7.27 And it is disingenuous
of Respondent to argue that, if a labor organization can
waive the right to strike, so can individual employees,
when by its actions it is attempting to prevent the em-
ployees from acting in concert to achieve the bargaining
strength that a labor organization possesses. Great West-
ern Mushroom, supra.
CONCI USIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2 (2), (6), and (7) of the Act.
2. Respondent has violated Section 8(a)(1) of the Act
by the following actions:
(a) Discharging Dennis Swisher for threatening to go
on strike.
(b) Discharging Jesse Muncy, Raymond Fillinger,
Cecil Marcum, Jackie Spaulding, Charles Fillinger,
Kessler Marcum, Bill Muncy, Charlie Conley, Roger
Lee Williams, Fred Fitchpatrick, Bobby Lee Marcum,
Ernest Sturgill, and James F. Mollett for striking.
(c) Withholding coal royalty and Christmas bonus pay-
ments from the above-named employees.
(d) Making statements that were threatening and co-
ercing to the striking employees.
(e) Displaying firearms to employees peacefully picket-
ing.
(f) Requiring employees to forgo their right to strike
in order to work.
26 NI.RB v. Great Dane Trailers, supra: NLRB v. Erie Resistor Corp..
373 U.S. 221 (1963)
27 "While the strike undoubtedly brought inconvenience and economic
loss to the Company . such a result is obviously the very object of
any concerted employee action protected by the Act." 'LRB v. Lasapon-
ara & Sons. Inc., 541 F2d 992. 998 (2d Cir 1976).
(g) Deducting monetary penalties from striking em-
ployees' wages.
REMEDY
Having concluded that the strike that began on Octo-
ber 27, 1980, was an unfair labor practice from its incep-
tion, I find that it will effectuate the purposes of the Act
to order Respondent, in addition to taking the action rec-
ommended in the attached order2 8 designed to remedy
the unfair labor practices found herein, (I) to offer to all
strikers immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights and privileges previously enjoyed,
dismissing, if necessary, any person hired on or after De-
cember 1, 1980, and (2) to make them whole for any loss
of earnings they may suffer as a result of Respondent's
refusal, if any, to reinstate them in a timely fashion, by
payment to each of them a sum of money equal to that
which each would have earned as wages during the
period commencing with their discharge and ending with
Respondent's unconditional offer (see Abilities & Good-
will, 241 NLRB 27 (1979)), net earnings during such
period, with backpay and interest thereon to be comput-
ed in the manner prescribed by the Board in F. W Wool-
worth Co., 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977)?29
Any dispute about who is to be offered reinstatement
and what backpay, if any, is due shall, if necessary, be
determined at the compliance stage of this proceeding.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I make
this recommended:
ORDER 3 0
The Respondent, Davis Coal Company, Kermit, West
Virginia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees because they strike or
engage in other concerted protected activities.
(b) Requiring as a condition of employment that em-
ployees promise not to strike.
(c) Withholding from employees' pay or deducting
amounts therefrom a monetary penalty for striking.
(d) Withholding or denying previously accrued bene-
fits because employees strike.
28 A broad form cease-and-desist order is employed because Respond-
ent has been "shown to have a proclivity to violate the act [and] has en-
gaged in such egregious ... misconduct as to demonstrate a general dis-
regard for the employees' fundamental statutory rights." Hickmott Foods,
242 NLRB 1357 (1979); NLRB v. Blake Construction Co.. 663 F.2d 272
(D.C Cir. 1981).
29 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
30 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1079
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Making statements that threaten or coerce employ-
ees who are engaging in activities that are protected by
Section 7.
(f) Displaying weapons in front of peacefully picketing
employees.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the National Labor Rela-
tions Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Dennis Swisher and the other discharged em-
ployees named supra immediate and full reinstatement to
the former job of each, or if that job no longer exists to
a substantially equivalent job, without prejudice to each
one's seniority or other rights and privileges, dismissing,
if necessary, anyone hired by Respondent on or after De-
cember 1, 1980, and make each whole for any loss of
earnings in conformity with the above-described
"Remedy."
(b) Expunge from its files any reference to the dis-
charge of Dennis Swisher that is the subject of this Deci-
sion, and the discharges of the employees listed supra,
and notify each in writing that this has been done and
that evidence of this unlawful discharge will not be used
as a basis for future personnel actions against him.
(c) Post at its facility in Kermit, West Virginia, copies
of the attached notice marked "Appendix" 31 Copies of
said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by Respond-
ent 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 ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
To the extent not found herein, the allegations in the
complaint are dismissed.
al In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1080