Floyd Fuel Co.

National Labor Relations Board - Board Decisions

Feb 4, 1960

126 N.L.R.B. 453 (N.L.R.B. 1960)

FLOYD FUEL COMPANY 453
Floyd Fuel Company and Milton Vernon Enix
Floyd Fuel Company and Richard Vincon Lambert , Kenneth
Stone, Junior Ray McCauley, James L. Chambers , George W.
Pifer, and Virgil Green . Cases Nos. 6-CA-1606, 6-CA-1612,
,6-CA-1645, 6-CA-1646, 6-CA-1649, 6-CA-165P2, and 6-CA-1657.
February 4, 1960
DECISION AND ORDER
On September 17, 1959, Trial Examiner Thomas A. Ricci issued his
Intermediate Report on the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices but had
not engaged in other unfair labor practices alleged in the complaint,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications herein
noted.'
The Trial Examiner found that the following conduct of the Re-
sspondent violated Section 8(a) (1) of the Act because it implied to
the employees that if they persisted in their strike resolve they risked
economic reprisal by the Respondent : (a) The statement of Altieri,
assistant to the president of the Respondent, that employees would be
discharged if they dared to strike; (b) the statement of Respondent's
president, immediately before the strike, that if the employees did not
want to work they could pick up their checks and leave; (c) the nota-
tion of "voluntary quit" on the strikers' final paycheck; (d) the sum-
mary eviction of striking employees from company shacks, although
there was no evidence that such shacks were needed to house replace-
ments, and the period for which rent had been paid had not yet
expired; and (e) the precipitate discontinuance of Respondent's con-
tributions to defray the cost of the strikers' hospitalization insurance
premiums. We adopt the Trial Examiner's violation finding, but rely
only on (a), (b), and (d), above. As to (c), we do not believe that
IIn the absence of any exceptions thereto we adopt pro forma the Trial Examiner's
finding that the Respondent did not in fact discharge the strikers and so did not violate
the Act in that respect.
126 NLRB No. 57.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the record warrants a finding that the "voluntary quit" notation was
intended by the Respondent as other than a reference to the fact that
the employees had voluntarily left the premises and not been dis-
charged. Under the circumstances of this case, we will not infer
intent to coerce employees from the hastily prepared checks, nor do
we believe that such notation was reasonably calculated to have a
coercive effect. As to (e), the record shows, and we find, that the
Respondent's payment of the insurance premiums was terminated in
the same manner as that of any other employees who were dropped
from Respondent's payroll for whatever reasons.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Floyd Fuel Com-
pany, Tunnelton, West Virginia, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Threatening its employees with discharge in reprisal for strike
action, and stating or implying to its employees that as strikers they
will lose their employee status.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organization,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at the Respondent's plant in Tunnelton, West Virginia,
copies of the notice attached hereto marked "Appendix." 2 Copies of
said notice, to be furnished by the Regional Director for the Sixth
Region, shall, after being duly signed by the Respondent's repre-
sentative, be posted by the Respondent immediately upon receipt
thereof, and maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by the Re-
9 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
FLOYD FUEL COMPANY 455
spondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for the Sixth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges unfair labor practices other than those
found herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT threaten our employees with discharge in reprisal
for strike action or state or imply to them that as strikers they
will lose their employee status.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist any
labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment in conformity with Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization.
FLOYD FUEL COOMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On two complaints issued by the General Counsel, and on separate answers duly
filed by Floyd Fuel Company , herein called the Company or the Respondent, a
hearing in the above -entitled cases was held before the duly designated Trial
Examiner on July 23 and 24, 1959 , at Kingwood , West Virginia . The issues litigated
are whether the Respondent violated Section 8 ( a)(1) of the statute in its attitude
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
towards and treatment of a group of strikers, and whether it violated Section
8(a)(3) of the Act in the discharge of employee Enix. All parties were afforded
full opportunity to introduce evidence, to examine and cross-examine witnesses, and
to argue orally at the hearing. After the close of the hearing, a brief was received
from counsel for the Respondent.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Floyd Fuel Company is a West Virginia corporation having its principal office and
place of business at Tunnelton, West Virginia. It is engaged in the operation of
coal mines in the State of West Virginia and annually sells and ships goods valued
in excess of $50,000 from West Virginia to points outside that State. I find that
the Respondent is engaged in commerce within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The case as a whole
The events giving rise to this proceeding occurred at a coal mine in Tunnelton,
West Virginia, in January 1959. About 40 employees, almost the total comple-
ment, went on strike on January 21 because they were dissatisfied with their wage
rates and the Respondent refused their demand for a raise. Six of them filed sepa-
rate charges alleging that they were discharged for having engaged in concerted
activities. A seventh employee, Vernon Enix, was admittedly discharged on
January 20, the day before the strike, and he filed a seventh charge. Separate
complaints were issued, one on behalf of all the strikers, and one for Enix only.
The complaint as to the strikers alleges a technical discharge as to them, because
it is conceded they refused to work for the established wages, and that the strike
was strictly an economic one; the unfair labor practice as to them, therefore, is
said to be, not discrimination in employment, but only coercion in their right to
engage in concerted activity, in violation of Section 8(a)(1) of the statute. The
complaint as to Enix alleges unlawful discharge in violation of Section 8(a)(3).
The Respondent asserts Enix was discharged for just cause, and denies the commission
of any illegal acts.
Although 18 witnesses were called, there is very little disagreement among them
as to what was said and done. As to the pertinent facts, only two credibility issues
need be decided: did Lobb, the president of the Company, at the moment he refused
a wage increase to the assembled employees after their chosen spokesman had made
the demand, say to them that they were "fired" or "discharged"? The evening
before, when the president's assistant, Altieri, appeared at the mine to learn what
was in the wind, did he tell some employees they would lose their jobs if they
struck? On all other pertinent matters the facts are uncontradicted, and disagree-
ment centers entirely on what inferences are to be drawn from what was said and
done.
The dissatisfaction leading to the strike seems to have stemmed from two matters
of concern to the employees: the physical condition of the plant and its equipment
and wages. Actually, it is clear on the total record that what the employees wanted
was more money, and that one of the reasons why they felt entitled to raises was
that in their opinion undesirable working conditions warranted them. Had the
Respondent satisfied their wage demands, they would unquestionably have continued
to work, for the employees had all donned working clothes, put on their mining
lamps, and held lunch pails in their hands only 10 minutes before starting time at
the entrance to the mine when the wage demand was made and refused.
There is a great deal of testimony concerning the condition of the mine-
whether electric wires were properly strung and covered, whether the moving belts
were safe, whether the ventilation system operated correctly, whether the coal cutting
machines had proper safety devices, etc. A number of employees who later went
on strike and now testify for the General Counsel in support of the complaint,
described conditions in the mine as very poor in these respects. Other employees
testifying for the Respondent, as well as some of its supervisory personnel, said that
conditions were good, and, as they clearly showed, that the mine was inspected from
time to time by State authorities and found to be in good working order, even
including an inspection made by three inspectors only several days before the
strike. I find no occasion, and no useful purpose would be served in this case,
for considering this conflicting testimony and passing judgment upon the proper
or improper condition of the mine. So far as the issues of this case are concerned,
FLOYD FUEL COMPANY 457
it suffices to say, as the record amply shows, that a number of employees thought
conditions might be improved, discussed these things among themselves from time
to time, and on occasion individually complained or brought specific matters to the
attention of some supervisor. There can be no question that matters of this type
are embraced within the statutory phrase "conditions of employment"; all that is
relevant here is that there was some concern in the minds of the employees on this
subject. The merits of their complaints are beside the point.
B. The pertinent facts
1. Concerted activities and the strike
There was no union activity among these employees. The case rests upon their
efforts to band together to present a solid front to the Respondent to gain mutual
improvements in their conditions of employment, activities also protected by Sec-
tion 7 of the Act. In support of the complaint, the General Counsel introduced
evidence tending to show two matters of interest to the employees with respect to
which, he would have it, they in fact engaged in "concerted" activities. The first,
as stated above, is a concern over physical conditions of employment in the mine,
meaning physical danger and other personal inconveniences. On this aspect of the
case the testimony shows without contradiction that for some time before January
21, 1959, there was talk among employees about exposed wires in the mine, about
the fact that the moving belts on which they entered the mine required them to
move from one belt to another while they were in motion, about the asserted insuffi-
ciency of oxygen supplied by the ventilating system, and matters of like kind. Some
of the employees spoke to their foremen or to the plant superintendent on occasions.
Also, sometime in December 1958, one employee, Humphrey, wrote an anony-
mous letter to the West Virginia Department of Mines, complaining about such
conditions. There is no evidence whatever indicating that any employees, as a
group, ever took any action , or planned to act together in an attempt to remedy
these complaints, or to bring them to the attention of management representatives
as a group.
The second condition of employment over which a number of employees were
dissatisfied was wages. During the period before January 21, variously estimated by
different witnesses as a few days, or a week, or even more, some of the employees
decided to select a spokesman to voice their common demand for more money
from the Company. They chose one Woodard, an employee. Sometime during
Monday, January 19, Woodard spoke to the plant superintendent, Gray, and said he
wished to speak to Lobb, the president of the Company. Gray inquired the reason,
but Woodard refused to tell him. Gray did nothing about Woodard's demand, and
sometime between 9 and 9:30 a.m., January 20, down in the mine where they were
at work, Woodard again spoke to Gray and requested to speak to Lobb. This time
he told Gray that he wished to speak to the president about the matter of wages for
the employees. Gray now attempted to communicate with Lobb, was unable to
locate him, and sometime in the middle of the day succeeded in speaking on the
telephone to Altieri, the assistant to the president. Altieri came to the mine early
that afternoon, sometime before 3:30, the end of the first shift.
When Altieri arrived at the mine, Superintendent Gray told him that Woodard
wanted to speak to the president about raises. Altieri, perhaps a half hour after
the shift had ceased work, went to a shanty, close to the mine entrance, in which
three of the miners stayed during the week because they lived in distant towns
His conversation with them gives rise to the first of the two questions of credibility
presented by this record.
According to Cosner, Altieri started by asking them why the employees wished
to see Lobb and he answered by saying it was because they needed a raise and
wanted to talk to Lobb about it. Cosner continued to testify that Altieri then said,
"He understood we were going to come out on strike if we didn't get to talk to Mr.
Lobb," and that "if we did pull a strike on account of that he would fire the whole
bunch of us." According to Jones, the second employee, Altieri said: "What is this
I hear about you boys coming out in the morning . if you do just figure on
losing your job." Triplett, the third employee, quoted Altieri as saying, "He under-
stood the men were coming out the next morning or coming on strike . you are
going to keep fooling around until you have no job here. You are going to be fired."
Altieri admitted having opened the conversation by asking the three men "what
was wrong, what they had in mind, and what Woodard wanted." He said they
denied "knowing anything about it," or "what was going on." He denied having
threatened to fire them, or saying their jobs were endangered. He added he was
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accompanied by Gray, the superintendent , who stood in the door and listened.
Gray corroborated Altieri. i
I do not credit Altieri 's denials. He admitted that he knew, before going to the
men in the shanty, that Woodard intended to speak to Lobb about a raise. He
nevertheless testified that his purpose in going to speak to the men was to ask what
Woodard wanted and what the men intended to do. He also admitted asking them,
"Are you boys working tomorrow ." Altieri had no reason to inquire of the em-
ployees why Woodard wished to speak to the president , for he already knew.
Moreover , there is no indication that any of the employees had hinted at strike
action, or not working the next day. Whether Altieri had heard , in some fashion,
of any planned strike action , or whether he imagined such action might take place,
it is clear it was he who injected the subject of strike action into the conversation.
The testimony of the three employees was consistent , clear, and perfectly persuasive.
I found nothing in their demeanor to indicate they might not be telling the truth.
On the other hand, Altieri 's virtual admission of having raised the question of strike,
shows that he approached the three employees with an intent to d spel any such
thought from their minds. In these circumstances , and, on the basis of Altieri's
demeanor on the stand , I credit the three employees . In reaching this conclusion I
have also considered Gray's testimony in which he corroborated Altieri's denial that
the word "fired " or any threat of discharge had been used.
Lobb arrived at the mine at about 6:15 the next morning, January 21 . Altieri was
with him. Between 6:30 and 6:45 , the employees of the first shift-about 20-were
ready to go to work. They had put on their work clothes, taken their lamps from
the lamp room , and had their lunch pails with them. They stood in a group when
Lobb asked Woodard what he wished to speak about . Woodard told Lobb he had
been selected as spokesman for the employees and that they wanted a raise. He did
not specify further. A number of employees testified that Woodard also referred
to the "working conditions ," while asking for the raise . Others said he did not use
those words . It would appear that he did use such a phrase, for Superintendent
Gray, who was also present , said that Woodard explained "we have been loading a
lot of coal here . . . under the conditions we are working under that we ought to
have a raise ." In any event , there is no question but that Woodard did not specify
anything concerning what conditions of work he had in mind.
Lobb replied that for economic reasons the Company could give no raises
whatever . It is at this point that the second conflict in the testimony arises. Wood-
ard did not appear as a witness.
All the witnesses , employees, the superintendent, and Lobb himself , testified in
agreement that Lobb also said to Woodard and indirectly to all of the employees
within hearing , that if they did not care to continue working at the established wages
and under those conditions , they could go to the office and be paid off immediately.
One of the major props of the General Counsel 's contention that the Respondent
"discharged " the employees for their concerted activities is the assertion that Lobb
actually told them that morning that they were fired He was quoted, by persons
who heard him, as follows : Employee Humphrey-". . . those of you that don't
want to work under those conditions pick up your check . It will be waiting for you."
Employee Cosner-". . . if we didn 't want to work under them conditions and for
them wages we could go to the office and pick up our time." Employee Jones-
"He said if we didn't like the working conditions and the wages we was fired and
we could pick up our checks on the way out." Employee Simmons-"If you don't
like the working conditions you can get out " Simmons added, "That's the exact
words ," and Humphrey expressly said Lobb never used the word "fired ." These
employees testified in support of the complaint
Lobb explicitly denied having used the words "fired" or "discharged " He testified
he only told them "5f they were not satisfied and if they wanted their checks .. .
that we would pay them off, because it had been a custom of our Company if any-
body left they got their checks." His assistant , Altieri, Superintendent Gray, and
Goldstrom also testified Lobb did not literally discharge the men.
'Apparently in further corroboration of Altieri's denial, the Respondent called Gold-
strom, the company coal inspector who also worked at the mine. Goldstroin said Altieri
did not threaten to discharge the employees, but only asked them to vacate the shanties
if they were not going to work. Neither Altierl nor Gray placed Goldstrom in or near
the shanty when Altieri spoke to Cosner, Jones, and Triplett. Goldstrom obviously was
referring to a conversation between Altieri and certain employees which took place the
following day concerning continued occupancy of the shanties after the strike started.
His testimony on this point is therefore meaningless.
FLOYD FUEL COMPANY 459
On the total evidence, and considering the testimony of all the witnesses, I am
unable to find that Lobb in so many words told the employees that if they did not
work they were discharged. Only one of the witnesses, Jones, put such a word in
his mouth, and I do not credit him against all the others. If Lobb is to be judged
as having discharged the employees that day, the finding must stand as an inference
based on the unequivocal words he used in telling them that they could have their
money right away. In the light of his own testimony, I credit the General Counsel's
witness as to the phrases he used.
Woodard told Lobb, as soon as his demand for a raise had been refused, that the
men would have to discuss the matter. Immediately almost all the 20 employees
of the first shift entered the lamp room, closed the door, and discussed the matter
among themselves. When 7 o'clock came, Gray, the superintendent, opened the
door and called in to them to "go to work." They waited a while longer and then
emerged. Most of them replaced their lamps, removed their work clothes, and left
the premises. Of the 20, 4 or 5 went to work. According to Lobb, Woodard told
him at that point that the men were quitting. As stated above, Woodard did not
testify. Of the approximately 20 employees scheduled to work on the afternoon
shift, only 2 reported to work. The rest joined the strike 2
Later that day, in the early afternoon, some of these employees began to picket
the mine. They established a picket line about 2 miles away from the mine proper,
at a point where a private road leaves the public highway to enter several mining
properties, one of which is that of the Respondent. The picketing continued for a
period of time, sporadically. So far as appears on this record, it was a fairly constant
thing for a month or two, then tapered off. It appears that there has been no
picketing for a period of I month before the hearing and that for the few months
earlier there had been very little and only occasional picketing.
The foregoing evidence of Lobb telling the employees they could be paid off
immediately, is one of the facts upon which the assertion of discharge rests. There
are three others.
The first is that shortly after the men decided to cease work, Altieri spoke to five
or six of them in the small shanties which they occupied as sleeping quarters.
It appears the Company owns several small wood shanties, used by employees
who live 40, 50, or 80 miles away. They pay a very small rent; in one instance a
shanty was occupied by three men for $8 per month. These facilities are made
available by the Company only for employees. Altieri admitted, as the employees
testified, that within the hour of the inception of the work stoppage, he spoke to
them in their shanties and told them they would have to vacate the shanties because
they were needed for replacements. The Company also instituted dispossess pro-
ceedings against some of them before a justice of the peace a few days later. The
record shows that in each instance the employees personally or otherwise agreed
before the justice of the peace that they would vacate and did so.
Final paychecks were prepared on the very day, January 21, for each of the
employees who ceased work. Attached to each final paycheck there appeared the
following notation on the Company's stub: "Wages in full to date-payee having
voluntarily quit." The employees picked up their checks, almost all of them, on
the following Saturday, January 24. A few called for them earlier.
The third fact on which the General Counsel relies to establish the fact of
"discharge," is that the Respondent ceased paying for Group Hospitalization insur-
ance on behalf of the strikers. For some years the Company had been maintaining
such hospitalization for its employees, paying the full premium of $9.15 per month
for each. The premium was paid each month with the Company submitting to the
insurance company a list of names on which all employees appeared; each month
new employees were added to the list, and all employees who had severed their
employment were removed. On about February 15, when the Company submitted
to the insurance company the usual monthly statement, the name of each of the
employees who had gone on strike was deleted and no premium was paid for them.
In due course, the insurance agency in charge of the policy wrote a form letter to
each employee advising him that his coverage had been terminated, and inviting
him to continue the insurance individually by himself sending the premium to the
insurance company. Each employee was covered for a 30-day grace period.
2 Some employees testified that four or five men of the afternoon shift worked. How-
ever, Daniels, assistant foreman of the afternoon shift, who worked that day, said that
only two, including himself, did not go on strike.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The discharge of Enix
Milton Enix worked for the Respondent for about 1 year, up to January 20, 1959,
a Tuesday. He worked primarily as a loader, but was also experienced on a coal-
cutting machine. He had on occasions complained to Superintendent Gray about
the ventilating system, and about defective conditions on the cutting machine. Before
the start of the workshift at 7 o'clock Tuesday morning, because another employee-
White, a cutter-did not appear for work, Supervisor Stone asked Enix to work
on the cutting machine that day. Enix refused, because as he said, that particular
cutting machine was "hot." By this he meant that electricity ran through the
machine and endangered the operator. Stone reported Enix's refusal to Superin-
tendent Gray. Gray then ordered Enix to go to work on the cutting machine.
Again Enix refused. Thereupon, Gray discharged him. As Gray was filling out a
discharge slip, Enix said to him: "You put down on there why I am not running
that machine . if you fire me over this I will be in the Mine Inspector's office
before this day is over." According to Enix, Gray then answered: "I wouldn't
doubt but that you have already been there." Cosner corroborated Enix on this
conversation and Gray did not contradict it.
Enix left the plant and never worked again.
C. Analysis and conclusions
1. The alleged violation of Section 8(a)(3)
When Enix was discharged at about 6:55 a.m., Tuesday, January 20, no repre-
sentative of the Respondent knew why Woodard wished to speak to President
Lobb, anything about the employees' concerted plan to ask for raises, or of any
other concerted activity its employees may have been carrying on. It will be recalled
that Superintendent Gray first learned from Woodard what the employees desired
at about 9 or 9:30 that morning, after he had discharged Enix. Thus, the General
Counsel does not, as he cannot, argue that the Respondent discharged Enix because
of any belief it might have had that he was one of the group behind Woodard's
emissary function the next day.
It is the General Counsel's theory that the concerted activity for which Enix was
discharged was the common complaint among many employees that conditions in
the plant were dangerous in some respects And it is true that some employees
had complained and had discussed these matters among themselves. It is also true
that Enix, like others, had spoken to other employees of being dissatisfied with
physical conditions, and had even personally mentioned some of them to Superin-
tendent Gray. To further support his contention that all this common disgruntle-
ment amounted to concerted activities, the General Counsel points to Humphrey's
action in sending an anonymous letter to the State authorities the month before
and to the fact Woodard mentioned working conditions when asking for the raise.
I do not believe the General Counsel has established that concerted activities
took place among these employees before the designation of Woodard to ask
for raises. His analogy, in his oral argument, to an orchestral presentation in which
each musician plays his own instrument, and the audience hears a combination of
tones, or a "concert," I think is ill taken. There is nothing on this record to indi-
cate that any employees at any time decided to act together to remedy any of their
complaints concerning dangerous conditions. There is nothing to indicate that
Humphrey did not act absolutely independently in writing to the mine authorities 3
Certainly, even assuming that the General Counsel's theory of what constitutes
concerted activities were valid, there is no evidence that the Company was aware
that its employees were dissatisfied in any "concerted" sense. Indeed, on the record
as a whole, it appears instead that the employees thought more of concealing from
the Company the very fact they voiced their complaints to one another.4
8 From the transcript :
TRIAL EXAMINER • Is there any testimony to indicate that the writing of that
letter was a thing that the employees considered doing together' That there was
any discussion among the employees, "Let's write a letterI"
Mr. GRUPP : There is nothing in the record to show that, no
TRIAL EXAMINER: Is there anything in the record to show that anyone ever
thought of writing it letter except whoever this anonymous person may have been'
Mr. GRIIPP • There is not.
* Enix himself described the talk that went on : "Lots of times we would congregate
together, the men would, and talk it over as we started feeling our way around at the
FLOYD FUEL COMPANY 461
The General Counsel also argued that Gray suspected Enix of having written the
anonymous letter, and discharged him for that reason. He conceded, however, that
an employer has the right, under this statute, to discharge an employee for such
conduct if it so chooses. I do not think the record supports the factual assertion
that Gray believed Enix to have written the letter. It is true Gray made an attempt
to learn who had written the letter by questioning employee Morris about the matter.
But it is also true that the mine inspection that took place pursuant to the anonymous
letter, did not enter that part of the mine in which Enix worked. Against this,
Gray's retort, after Enix threatened the superintendent with a complaint to the
authorities, that no doubt Enix had already done so, falls far short of showing
Gray had previously decided Enix to be the culprit.
On sum total, considering both the fact that no real concerted activities by the
employees has been shown on this record before the discharge, and the absence of
any substantial evidences pointing to any knowledge or suspicion on the part of the
Company of such action, I can only conclude that the General Counsel has not
satisfied the affirmative burden resting upon hun to show that the Respondent
discharged Enix for any activity other than his refusal to carry out a work assign-
ment. Whether this action was arbitrary or not, whether the cutting machine in
fact was defective or not, are not matters of concern to the issue of this case. I
shall therefore recommend dismissal of the complaint involving Enix.
2. The violation of Section 8(a) (1)
On the question of its treatment of the strikers, the essential allegation of the
complaint, asserting a violation of only Section 8(a)(1) of the statute, is that the
Respondent unlawfully coerced them in the free exercise of the rights guaranteed
in Section 7. The concerted activity in which they engaged was in joining together
to present a common front to the Respondent in their demand for an increase in
pay, and going on strike to compel the Respondent to yield. That this activity is
protected by the statute is too well established to warrant extended discussion at this
late date.5 When, in the afternoon of January 20, before any strike action was even
contemplated, Altieri, the assistant to the company president, told three of the
employees they would be discharged if they dared to strike, his threat was a direct
interference with this basic statutory right. Coming when it did, his statement
could hardly be called a defensive tactic during an economic struggle. Accordingly,
I find that by Altieri's statements to the employees at that time, the Respondent
unlawfully coerced its employees and thereby violated Section 8(a) (1) of the Act.
The General Counsel also contends that by telling the strikers that they were no
longer employees of the Company, the Respondent in fact implemented Altieri's
threat and discharged them, in outright punishment for having carried on the pro-
tected activity. On careful appraisal of the entire record, I think it clear that by
various means the Respondent did further coerce and restrain its employees in this
right to strike by implanting in their minds the thought that they had thereby lost
their employee status. I am not satisfied, however, that the evidence in its entirety
can support a finding of actual discharge.
Despite Altieri's threat, no representative of the Respondent ever literally told
any striker that he was discharged. In saying to them, at the moment they began
to manifest a possible intention to withhold their services, that they "pick up" their
checks "on the way out," and that they could "get out," Lobb certainly used strong
language. While these phrases could easily have been construed, in the heat of the
moment, as oblique termination notices, there is also a possible explanation for them
in the uncontradicted testimony of Lobb that it was a fixed practice always to pay
employees immediately for the day or days' wages due when they left work for
any reason. No such justification can be advanced for the Respondent's decision to
mark the final paycheck of each striker "voluntarily quit." This was a gratuity by
the Respondent not warranted by the facts. Lobb impressed me as a very intelli-
gent and highly experienced businessman. As he has long been in commerce, I am
sure he well knew the difference between voluntary resignations and a strike. There-
first start, because we was afraid that someone would go and inform on us, and we might
be discharged. So we felt our way around, and it happened for some time, and as the
time grew, we got a little more bolder with it, and in all of these conversations we aereed
with each other that-who would be a good man to go out and talk to Mr. Lobb
for us, . . "
5 N.L.R B. v. United States Cold Storage Corp., 203 F. 2d 924 (C.A. 5), and cases cited
therein.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore, while quick preparation of the paychecks might be explained by a desire to
continue the past practice of making earnings available as soon as possible, this
direct way of telling the strikers so quickly that the Company no longer considered
them to be employees, necessarily tended to convey the thought that they were finally
separated.
Similarly, Altieri's rush, in company of the mine superintendent, to tell five or
six employees that they must immediately vacate the shanties which they rented and
occupied as employees, further strengthened the impression which the Respondent
was conveying. The sudden action bespoke a finality to their employer-employee
relationship. No employer is obligated to make his property or facilities available
to strikers, or to any employees who choose to withdraw their services. And yet, it
does appear that rental payments, however small, had been made to the end of the
month. Thus, the Respondent's unseemly haste in evicting the strikers from their,
sleeping quarters appears much more as an intimidating technique than as a proper
concern for replacements yet to be found. In like measure, cancellation of the
employees' hospitalization insurance, at the very earliest possible moment, although
quite defensible in itself, when viewed in the total context of what preceded it,
must have appeared as the final curtain to those strikers who had not returned by
the next month.
While no single one of these separate facts revealing the Company's reaction to
the employees' decision to strike, standing alone, can convincingly establish the
Respondent's hostile and coercive attitude towards the employees, when I view
them together I am convinced they reflect a determination to intimidate the employees
in order to compel them to abandon any intention to strike and to remain at work.
A desire by an employer to persuade his employees to remain at work is lawful
and proper. Such right, however, cannot serve to excuse conduct which necessarily
and in fact coerces the employees in their statutory rights. I think, therefore, that
Altieri's direct statement that striking simply meant having no jobs, Lobb's emphatic
stress upon immediate final payment, the written statements to each employee that
he had quit, and the haste in dispossessing them from their quarters on the premises,
all add up to a direct message by the Respondent that if the employees persisted in
their strike resolve they risked economic reprisal by the Company. I find that by all
this conduct the Respondent coerced the employees and thereby violated Section
8(a)(1) of the Act.
Whether the Respondent in fact discharged them so as to have severed their
employer-employee relationship is another matter. With respect to that argument
of the General Counsel, I think this case is determined by the Board's decision in
Kerrigan Iron Works, Inc, 108 NLRB 933. As the Board viewed this question in
a comparable context there, the issue, restated, is whether or not the employer in-
tended to sever the employee relationship. The Board evaluated that question on-
the basis not only of what an employer says to employees who are on strike, but
also in the light of the totality of its conduct. In order to appreciate the total picture,
in the Kerrigan case the Board remanded for the purpose of learning what had
developed subsequent to the strike and subsequent to the employer's statement to
the strikers that they were "permanently terminated" if they did not quickly abandon
the strike. And the Board considered of importance the fact that, contrary to the
words it used, the company in fact took back all the strikers who cared to return.
Indeed, this fact was the major consideration supporting the Board's ultimate con-
clusion that the employer had not discharged them.
At the mine involved in the case at bar, 41 miners struck on January 21. By
the time of the hearing, 6 months later, 20 of them had returned to work. Every
striker who offered to return was accepted. There is no indication that the Respond-
ent discriminated against any of these when they returned. Moreover, it is clear
on the entire record that the Company at all times desired to have them back. By
contrast, in the Kerrigan case, of the approximately 135 employees who went on
strike, 35 returned to work within a month, and by the time of the hearing, a year
later, 14 more had returned. Thus perhaps 85 still remained on strike. Moreover,
unlike the Respondent here, the employer in Kerrigan wrote a letter to each employee,
a month after they had started the strike, presenting them with a virtual ultimatum
of discharge or abandonment of the strike. Neither Lobb, nor any representative
of this Respondent, ever used the word "discharge ." If in circumstances where
direct discharge language is used with calm deliberation a month after the initial
heat of strike action has cooled and only a third of the employees have returned, the
Board refuses to find discharges in fact , necessarily the same conclusion must be
reached where no discharge language is used at all, the only indication of discharge
intent is given almost as part of the res gestae of the strike action, and one-half of
INDEPENDENT LINEN SERVICE CO. OP MISSISSIPPI 463
the strikers peacefully return and are welcomed.6 Accordingly I find that the evi-
dence as a whole does not affirmatively establish that the Respondent discharged
any of the strikers.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the operations of the Respondent set forth in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
IV. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom, and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Floyd Fuel Company, Tunnelton, West Virginia, is an employer within the
meaning of Section 2(2) of the Act.
2. By threatening its employees with discharge in reprisal for strike action, and
by telling its employees that strikers lose their employee status, the Respondent
has interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act, and has thereby committed unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
'The recent Board decisions upon which the General Counsel relies primarily, both
issued after the Kerrigan Iron Works case, ai c inapposite 'here In Brookville Glove Co,
114 NLRB 213, the employer wrote personal letters to each employee, one 3 and the other
7 days after the strike started, saying they were no longer employees if they did not
abandon the strike, the second letter accompanied by a termination notice when the
strikers later attempted to return, the employer refused to accept them except as "new
employees " In Ford Radio f Mica Corporation, 115 NLRB 1046, telegrams were sent to
the strikers saying unless they returned to work they were "discharged without further
notice," and when they offered to abandon the strike 2 days later the employer refused
to take them back, expressly saying "they had been discharged "
Independent Linen Service Company of Mississippi and Laundry,
Dry Cleaning & Linen Workers International Union, Ind.,
Local No. 218. Case No. 15-CA-1456. February 4, 1960
DECISION AND ORDER
On October 9, 1959, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case' to a three-
126 NLRB No. 58.