Garland Coal & Mining Co.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 963 (N.L.R.B. 1985)

GARLAND COAL & MINING CO
Garland Coal & Mining Co. and United Mine
- Workers of America and - William A . Davis.
Cases 16-CA-9050, 16-CA-9252, and 16-CA-
9176 - - - -
- 30 September 1985 -
SUPPLEMENTAL DECISION AND
ORDER.
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND-JOHANSEN
On 12 March 1981 Administrative Law Judge
-Gerald A. Wacknov issued the attached decision
and on 24 August 1982 he issued the attached sup-
plemental decision.,' The Respondent filed "excep-
tions in 'the nature of application for order remand-
ing to administrative law judge," the Charging Par=
ties filed joint cross-exceptions and a supporting
brief, the General Counsel filed cross-exceptions to
the Respondent's exceptions, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel. -
The Board has considered the decision, the sup-
plemental decision, and the record in light of the
-exceptions and briefs2 and has decided to affirm
the judge's-rulings, findings,3 and conclusions and
to adopt the recommended Order4 and supplemen-
tal Order, as clarified below.
i The supplemental decision was issued pursuant to a Board Order of
23 November 1981 remanding to the judge for the reopening of the
record and admission of additional evidence in Case 16-CA-9176
Chairman Dotson and Members Dennis and Johansen did not partici-
pate in the Decision and Order Remanding Proceeding to the Adminis-
trative Law Judge .
2 We have also considered the following exceptions and briefs filed in
= response to the judge's decision issued on 12 March 1981 the Respond-
ent's exceptions and supporting brief, the General Counsel' s brief in sup-
port of certain findings of the judge, the Charging Party's cross-excep-
tions and supporting brief in opposition to the Respondent 's exceptions in
Cases 16-CA-9050 and 16-CA-9252, the Charging Party's exceptions,
motion to reopen the record, and supporting brief in Case 16-CA-9176,
the General Counsel's answering brief to the Charging Party's motion to
reopen the record, the Respondent's response to the General Counsel's
answering brief, and the Charging Party's response to the Respondent's
response
The Respondent filed a request for oral argument This request is
denied as the-record in this case , including the exceptions and briefs, ade-
quately presents the issues and the positions of the parties
The Respondent also requests reimbursement of fees and expenses in-
curred by all parties in the preparation and presentation of the initial con-
solidated hearing While we recognize that there were unique factors in-
volved in the remand and reopening of the record in Case 16-CA-9176,
the Respondent 's request is denied as the Board lacks statutory authority
to grant fees and expenses under the circumstances of this ;ase
9 The Charging Parties have excepted to some of the judge's credibil-
ity findings The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
4 In its cross-exceptions and supporting brief in Cases 16 -CA-9050 and
16-CA-9252, Charging Party United Mine Workers excepted to the
963
The Respondent and the Union. were signatories
to- a collective-bargaining agreement. In 1979 the'
Respondent bought out part-of a local truck com-
pany and set up a separate trucking division, which
also became- a signatory to the contract. A dispute,
which is not at issue here,. arose -over the composi-
tion of the Mine and Trucking Division commit-
tees. In a memorandum dated 10 March 1980, the
Respondent stated its opposition to the consolida-
tion of the committees and advised members of
these committees that if they interfered in any ac-
tivity of a unit other than-their own, they would be
discharged for insubordination. On 12 March 1980
Donnie Oldham, president of the local union and
chairman of the grievance and safety committees,
was asked by the Respondent's safety coordinator
to sign the memorandum. Oldham refused to sign
because he thought that by doing so he would be
admitting that the Respondent's position was cor-
rect. Oldham stated that he wanted to check with
the Union's district office. - The next day, when
asked by the safety coordinator and the Respond-
ent's mine superintendent if he was going to sign
the memo, Oldham replied that he had not been
able to talk to an official at the district office.
Oldham was then given a letter in which the Re-
spondent informed him that- his refusal to sign the
memo -was an act of insubordination and that he
was being suspended with intent to discharge. Old-
ham's suspension and subsequent discharge were
arbitrated.
.In a decision issued on 13 May,1980, the arbitra-
tor concluded that although Oldham was insubor-
dinate for refusing to sign the memo, his single in-
stance of insubordination was not a sufficient
ground for discharge. Noting that the order to sign
the. memo was given to Oldham in his capacity as a
union representative, the arbitrator determined that
Oldham's suspension subject to discharge should be
reduced to a 3-week suspension and that he should
be reimbursed for all earnings lost beyond the first
3 weeks of his suspension.
Judge's Order and requested that it be awarded attorney's fees and that
the Respondent be ordered to ,mail the "proposed notice" to all employ-
ees The Charging Party bases the request on its contention that the Re-
spondent continued to act in bad faith by threatening members of the
committees with discharge should they properly represent the employees
despite an adverse arbitration decision and dismissal by the Regional Di-
rector of an 8(b)(3) charge The Charging Party's request for extraordi-
nary remedies is denied The Board has held that it will not award litiga-
tion expenses even where the respondent may be found to have engaged
in "clearly aggravated and pervasive conduct ," except in extraordinary
circumstances involving frivolous defenses King Terrace Nursing Home,
227 NLRB 251 (1976), Heck's Inc., 215 NLRB 765 (1974), Tudee Prod-
ucts, 194 NLRB 1234 (1972). Based on our review of the record as a
whole and of the Respondent 's exceptions and briefs , we do not find that
the Respondent's defenses were frivolous Further, the circumstances of
this case do not warrant the extraordinary remedy of ordering Respond-
ent to mail the notice to a ll employees
276 NLRB No. 102
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his decision issued on 12 March 1981, the
judge concluded that under Suburban Motor
Freight, 247 NLRB 146 (1980), deferral to arbitra-
tion was not warranted because there was no evi-
dence that the arbitrator had 'considered whether
Oldham's refusal to sign the memo was union
and/or protected activity. The judge further found
that in refusing to sign the memo, Oldham was
acting in his , official capacity as president of the
local union and as a committeeman in furtherance
of the-Union's position in the dispute with the Re-
spondent over the composition of the different
committees. The judge found that the Respondent
unlawfully discharged Oldham who, as a union
representative, was attempting in good faith to
assert a position regarding the representation of
employees. While we agree that deferral is not ap-
propriate in this- case, we do so for the reasons
stated below.
Subsequent to the-judge's decision and supple-
mental decision, Olin Corp.5 was issued in which
the Board held-that under the standards set forth in
Spielberg Mfg. Co.6 it would defer to an arbitration
award where-the proceedings appear to have been
fair and regular, all parties - have agreed to be
bound, and the decision of the arbitrator is not
clearly repugnant-to the Act. In Olin, the Board
also clarified its position with respect to the Rayth-
eon Co. requirement' that the arbitrator must have
considered the unfair-labor practice issue. Under
the revised standard, an arbitrator has adequately
considered the unfair labor practice if the contrac-
tual issue is factually parallel to the unfair.labor
practice issue and the arbitrator was presented gen-
erally with the facts relevant to resolving the
unfair labor practice.8
In-the instant case, Charging Party United Mine
Workers asserts that the Respondent has not met
its burden of showing that the standards for defer-
ral have been met as required by Suburban Motor
Freight, supra. In- Olin, we held that "the party
seeking to have the Board ignore the determination
of an arbitrator has the burden of affirmatively
demonstrating the defects in the arbitral process or
award," thereby overruling Suburban Motor Freight
to the extent that it provided for a different alloca-
tion of the -burden of proof.9 The Charging Party
argues that there has been no clear showing that
the, arbitrator considered the unfair labor practice
5 268 NLRB 573 (1984)
6 112 NLRB 1080 (1955)
T 140 NLRB 883 (1963)
8 See also Martin Redi-Mix, 274 NLRB 559 (1985), Badger Meter, 272
NLRB 824 (1984) -
9 268 NLRB at 574 (1984).
or ever ruled on it. 10 The Charging Party also
contends that even if the arbitrator considered the
statutory issue , there is little evidence that the arbi-
trator "clearly decided" -the issue.
As noted above, Olin does not require'the arbi-
trator to make a specific finding on the statutory
issue or to "clearly decide" the issue. We find that
as the party opposing deferral, the Charging Party
has not sustained its burden of proving that the ar-
bitrator did not consider the unfair labor practice.
First, it is clear that the contractual and statutory
issues were factually parallel. - The arbitrator was
required to determine whether Oldham was dis-
charged for "just cause" as required by the con-
tract. This question is factually parallel to the issue
to be considered by the Board, i.e., whether Old-
ham's discharge was in violation of the Act.
Second, it is equally apparent that the arbitrator
was presented generally with the facts relevant to
resolving the unfair labor practice charge. The ar-
bitrator specifically found that Oldham was ap-
proached'in his capacity as a union representative,
not as an employee, when he was asked to sign the
10 March memo; that the memo set forth the Re-
spondent's position with regard to the consolida-
tion of committees; that in the memo the Respond-
ent warned .that committeemen who interfered in
units other than their own would be discharged for
insubordination; that Oldham requested and was
given a day to contact the Union's district office
because he believed that by signing the memo he
would be admitting that the Respondent's position
was correct; and that, Oldham, having been unable
to speak to a district representative, refused-to sign
the memo and was suspended with intent to dis-
charge. Thus, the evidence before the arbitrator
was essentially the same evidence necessary for de-
termination of the merits of the unfair labor prac-
tice charge.
Next, we turn to the question whether the arbi-
trator's award is clearly repugnant to the purposes
and policies of the Act. As we held in Olin, with
regard to the inquiry into the "clearly repugnant"
standard, we would not require an arbitrator's
award to be totally consistent with Board prece-
dent. Unless the award is "palpably wrong," i.e.,
unless the arbitrator 's decision is not susceptible to
an interpretation consistent with the Act, we will
defer. We stress here as we have done in the past
that national policy strongly favors the voluntary
arbitration of disputes. Collective-bargaining agree-
ments-that provide for final and binding arbitration
of grievances and disputes contribute significantly
10 It is undisputed that the arbitration proceeding appeared to be fair
and regular and that all parties agreed to be bound.
GARLAND COAL &
\\to the objective of promoting industrial peace and
stability. The Board's deferral policy is therefore
based on the recognition of the importance of arbi-
tration in the overall- scheme of Federal labor law.
While recognizing the importance of arbitration,
the Board,will,,where necessary, vindicate the Fed-
eral -interest by declining to defer to an arbitrator.'s
award when it cannot be arguably reconciled with
the policies of the Act. i i
In the instant case, the arbitrator. decided that
Oldham was insubordinate- when he refused to
obey a supervisor's order to sign the Respondent's
memo.-We decline to defer to this decision because
its holding is clearly repugnant to the Act. The ar-
bitrator's decision explicitly states that "the order
was given to [Oldham] in his capacity as a Union
representative, not as an employee." As found by
the judge, in refusing to sign the memo, Oldham
was espousing a view and engaging in activity in
support of the Union's interpretation of the collec-
tive-bargaining agreement.12 To find that Oldham
was insubordinate under these circumstances is not
susceptible to any interpretation consistent with the
Act. It is well- established" that it is a violation of
Section 8(a)(3) of the Act when an employer disci-
plines employees for engaging in protected activi-
ties as union representatives.13
Moreover,' we find that Oldham's refusal to sign
the memo has not removed him from the protec-
tion of the- Act.14 In reducing Oldham's discharge
to a 3-week suspension , the arbitrator noted that
Oldham's refusal to sign the memo did not impede
or disrupt productivity in any, way, the refusal took
place in private and not in front of other employ-
ees, and the authority of the supervisors involved
was not publicly undermined by Oldham's actions.
Further, there is no claim ' that Oldham's conduct
exceeded 'acceptable bounds of conduct. Before
agreeing . to sign the memo,' Oldham merely asked
for additional time to contact the district office
and, when he could not, told the Respondent's su-
pervisors that he could not sign the memo because
11 NLRB v -Pincus Bros., 620 F 2d 367 (3d Cir 1980)
is The Union's interpretation of the collective -bargaining agreement
was upheld in a later arbitration award -
13 McGuire & Hester, 268 NLRB 265 (1983 ) In Pacific Coast Utilities
Service, 238 NLRB 599 , 606 (1978), the Board affirmed the judge's hold-
ing that "an employer violates Section 8 (a)(3) of the Act when he disci-
plines employees because of their status as shop stewards .'. or because
of their conduct as union stewards in processing grievances , policing the
collective-bargaining agreement , or for engaging in other activities as
union steward."
14 Id. at 606 "[A] union steward may remove himself from the protec-
tion of the Act if his conduct as union steward exceeds acceptable
bounds of conduct . Such unprotected conduct has been found where
the union steward fomented a strike in violation of a no-stnke clause -
instructed employees not to use a piece of equipment on the grounds that
it was not safe even though a safety engineer had declared it safe
refused to follow work orders and influenced others to do likewise
and engaged in disorderly, disruptive conduct "
MINING CO. . 965
he had not had time to talk to any district officials.
We find that the Respondent disciplined Oldham
for espousing an official and protected union posi-
tion • without engaging in conduct which can be
reasonably and objectively viewed as unacceptable.
Accordingly, we decline to defer to the arbitrator's
award and find that by discharging Oldham for ac-
tions he took in his capacity as union representa-
tive, the Respondent has violated Section 8(a)(3)
and (1) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order and supplemental Order of
the administrative law judge and orders that the
Respondent, Garland Coal & Mining Co., Stigler,
Oklahoma, its officers, agents , successors, and as-
signs , shall take the action set forth in the Orders.
Billy A. Snow, Esq., of Fort Worth, Texas , for the Gener-
al Counsel.
Lynn Paul Mattson, Esq. (Kothe, Nichols & Wolfe, Inc.),
• of Tulsa, Oklahoma , for the Respondent.
August Randall Vehar, Esq., of Washington , D.C., for the
Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV,- Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Fort Smith, Arkansas, on October
15 and 16, 1980. The charges in Cases 16-CA-9050 and
16-CA-9252 were filed on March 26 and July 14, 1980,
respectively, by United Mine Workers of America (the
Union): The charge in Case 16-CA-9176 was filed on
June 3, 1980, by William A. Davis, an individual. There-
after, on August 13, 1980, the Acting Regional Director
for Region 16 of the National Labor Relations Board
(the Board) issued an order consolidating cases and con-
solidated complaint and notice of hearing, alleging viola-
tions by Garland Coal & Mining Co. (the Respondent) of
Section 8(a)(1) and (3) of the National Labor Relations
Act. Respondent's answer to the complaint, duly filed,
denies the commission of any unfair labor practices.
The parties were afforded a full opportunity to be
heard, to call, to examine, and cross-examine witnesses,
and to introduce relevant evidence. Since the close of
the hearing; briefs have been received from the General
Counsel, counsel for Respondent, and counsel for the
Union. Further, Charging Party Davis filed a letter of
position in this matter.
On the entire record, and based on my observation of
the witnesses and consideration of the briefs and letter
submitted, I make the following
966 ' DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Missouri corporation with a mine or
facility -in Stigler, Oklahoma, where it is engaged in the
coal and mining business. In the course and conduct of
its business operations, Respondent annually receives
goods and materials valued in excess of $50,000 directly
from points outside the State of Oklahoma and annually
ships goods and materials valued in excess of $50,000 di-
rectly to points outside the State of Oklahoma. It is ad-
mitted, and I find, that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted -and I find that the "Union is, and has
been at all times material, a labor organization within the
meaning 'of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues '
The principal issues raised by the pleadings are
1. Whether Respondent unlawfully laid off or termi-
nated employees William A. Davis and Donnie Oldham.
2. Whether Respondent threatened employees • with
discharge or layoff because of their union or concerted
protected activity.
B. The Facts
1. The layoffs of William Davis; related threats
William Davis submitted a verbal grievance. to his
foreman in November 1979 maintaining that Respondent
had violated the applicable collective-bargaining agree-
ment by placing him in an -inferior wage classification.
Thereafter, Davis' grievance was-processed through suc-
cessive steps of the grievance and arbitration procedure.
Grievance meetings were held on December 4 and -6,
1979. At the meeting on' December 4, 1979, representa-
tives of the Union and the Employer met, but Davis.was
not present. After discussion of the matter, the union
representatives agreed that Davis'-grievance lacked 'merit
and indicated that it would be dropped. In addition to
discussing the grievance, Respondent's representatives
advised the Union that there was to be a realignment of
the work force as a result of the unavailability and break-
down of certain equipment, thus eliminating the need for
several, employees. As a result, the parties agreed to meet
on December 6,' 1979, at which time' Respondent was to
advise the Union which employees, if any, Were to be re-
aligned or laid off. - - -
The December 6, 1979 meeting was held as scheduled.
Davis was-present at this meeting and his grievance was
again discussed after the union representatives advised
Respondent that, contrary to the-Union's earlier position,
it, could not, drop Davis' grievance, The - parties . were
unable to resolve this grievance. Additionally, Respond-
ent submitted the names of Davis and Ronnie Nixon who
had been selected to be laid off as a result of the afore-
mentioned equipment problems. These two employees
had the lowest seniority of any of the 34 employees in,
the, unit except for Dale Apple, who was not laid off be-
cause of his ability-to operate a particular piece of equip-
ment which Davis and Nixon were not qualified to oper-
ate. i , Davis testified that 'during the December 6, 1979
discussion of his grievance, Dan Lawley, assistant super-
intendent, stated, "Well, I guess you know we are going
to realign." According to David Bratton, a member of
the grievance committee, Lawley said, "By -the way;
after this meeting , I want to have a meeting with the pit
committee and discuss a realignment." When Davis left,
Lawley said, according to Bratton, something to the
effect that he believed he could eliminate this grievance
through a realignment where it would not amount to
anything. Lawley,denies that he made such-a'uch -a statement.
Contrary to the complaint allegation which alleges
that the layoff of Davis from about December 8, 1979,-
until January 4, 1980, when Davis was reinstated, was
violative of Section 8(a)(1) of the Act, Davis 'testified
that he filed- no grievance over the December 8 layoff
because he was given the opportunity to bump another
employee but was unsuccessful and believed that the
layoff was fair. His testimony on this is as follows:
Q. You filed no grievance after the first layoff,
correct?
A. Correct. .
Q. Why not? .
A. I was given the opportunity-they disqualified
me. I
Q. All right. So far as you are concerned, the
first layoff-that occurred was -fair, is that. a fair
statement? -
A. At that point, yes. .
Davis returned to work about January 4, 1980, and
worked until. May 4, 1980, when he was again laid off
along with Jerry Collins, Rory Robertson, and Ronnie
Nixon.2 Following this layoff, Davis and Robertson filed
grievances. Both of these individuals objected to the fact
that Respondent, following the layoff, had misapplied the
contract by, assigning their jobs of driving belly dump
vehicles to other employees rather thanrecalling Davis
and Robertson. Respondent explained during the discus-
sion of • these grievances' that it had assigned the work to
senior employees who were not on layoff because, in the
interim , equipment which these senior employees regu-
larly operated had broken down and Respondent felt the
senior employees had been correctly assigned the work
in question.
' Davis was laid off on December 8, 1979 . While on layoff, he was
given a test to determine his ability to operate the loader. ' In accordance
with the contract , successful completion of the test would have enabled
tram to bump Dale Apple. Davis acknowledged that he failed the test, but
maintained at the hearing that the test was unfair . I credit the testimony
of Respondent 's representatives who concluded, as a result of the test,
that Davis did not exhibit the skills necessary to run the piece of equip-
ment . Moreover, there is no complaint allegation that the test was dis-
criminatory • -
2 Davis maintains that five employees were . laid off. The General
Counsel , in his brief, states that 10 employees were laid off at this time.
GARLAND COAL & MINING CO.
Davis also complained that the May . 4, 1980 layoff
procedure itself was contrary to the contract. In a griev-
ance meeting on May 14, 1980, Respondent agreed with
Davis that the layoff should have been treated as a "re-
alignment" under the contract. Sometime prior to this,
however, Respondent had asked the Union whether the
May 4 layoff could be treated as a temporary layoff
rather than a realignment in order to protect certain less
senior employees. The Union had implicitly agreed to
this method even though it appeared to be contrary to
the contract. Thus, during the• May 14 grievance meet-
ing, Respondent's superintendent William Heard, believ-
ing that Davis was cognizant of -the fact that the Union
had previously agreed that the contractual realignment
procedure need not be followed, asked if Davis was ha-
rassing him by the processing of such a grievance. Davis
said no , but that he believed the contract should be com-
plied with. Thereafter, the realignment procedure was
followed. Davis was reinstated in mid-August 1980.3
2. The discharge of Donnie Oldham; related threats
Donnie Oldham is an employee of Respondent and
president of Local 1329. He is also chairman of the
grievance and safety committees. About March 12, 1980,
Dan Cooper, Respondent's safety coordinator, requested
that Oldham read and sign the following memorandum
which was dated March 10, 1980:
SUBJECT: MINE COMMITTEES
TO: COMMITTEEMEN MINE #9 AND
TRUCKING DIVISION
It has been reported to me that there has been an
attempt to consolidate committees of Mine 9 and
the Trucking Division without Garland's approval.
Consolidation of these committees is not, I repeat
not the- perogative [sic] of the committees or the
local union.
The Trucking Division and Mine 9, are separate
seniority units and also separate signatories to the
contract and as such each are entitled to its own
committee under the contract.
You, are hereby advised that as a committee you
only have authority in your own seniority unit and
you will -not combine committees or attempt _ to
interfere in the activity of any unit outside of your
own:
Any interference by a committeeman in any ac-
tivity of a seniority unit other than their own will
be considered as a complete disregard of this direc-
tive and will result in discharge for insubordination.
GARLAND COAL & MINING CO. -
/s/L.G. Ballard, Jr.
L.G. Ballard, Jr. -
General Superintendent
3 The distinction between layoff, temporary layoff, and realignment as
contained in the contract, and/or interpreted by the parties- is complex
and a discussion of these various methods of reducing , reassigning, and
recalling the work force appears unnecessary under- the circumstances
herein.
967
Oldham refused to sign the memo, believing that he
would perhaps be admitting that Respondent's position,
infra, was'correct and stated he wanted to confer with
representatives from the Union's district office.
- The following day, March 13,1980, Oldham was ap-
proached by Safety Coordinator Cooper and V. W.
Smith, mine superintendent. Smith asked if Oldham was
going to sign the memo. Oldham said he had not had
time to, talk to an official at the Union's district office.
Thereupon, Smith handed him the following letter:
Dear Mr. Oldham.
On March -13, 1980, you were given a copy of a
memorandum to the Mine Safety Committee and
Mine Grievance Committee and directed by the su-
perintendent to sign . You refused to sign. This re-
fusal was a direct act of insubordination.
If you felt that the requirement for signing this
memorandum was a violation of the contract you
could have after signing sought recourse by virtue
of the grievance machinery set out in the contract.
Garland cannot allow personnel to refuse to
follow directions given by management. To do so
would result in utter chaos and prevent Garland
from operating the mine.
You are therefore suspended with intent to dis-
charge for- insubordination, in that your refused a
lawful directive of management. -
This suspension is effective immediately
GARLAND COAL & MINING CO.
V. W. Smith -
Superintendent
/s/ V. W. Smith
.
-
cc: Local Union #1329
The matter of, Oldham 's suspension was arbitrated and
the arbitrator issued his decision on May 13, 1980. The
arbitrator's decision- succinctly and correctly summarizes
the respective contentions of the parties regarding the
consolidation of union committees as follows:
For a considerable period of time, there has been
a dispute between -the- parties with respect to the
proper relationship between the employees working
in the mine and the Company's truckdrivers. The
Company took the position that the two groups
were separate and distinct seniority units, while the
union claimed they were a united group for some
.purposes. That , dispute flared up again in March
1980, when the Company Safety Director learned
that the Union had selected one of the truckdrivers
as a member of the Mine Safety Committee. The
Company's General Superintendent prepared a
memorandum on March 10, setting forth the Com-
pany's position that the Union could not combine
the committees of the two seniority units. The
memorandum warned that disregarding of its con-
tent would result in a discharge for insubordination.
The Safety Director was told to give a copy of the
memorandum to every member of the Union's
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Safety and Grievance Committees, and to secure a
written acknowledgement from each member that
he had gotten the memorandum.
The arbitrator concluded that Oldham was insubordi-
nate in refusing to sign the memorandum and was
obliged to obey the order to sign the memorandum and
then grieve its correctness. However, the arbitrator fur-
ther decided that Oldham's single instance of insubordi-
nation was not a-sufficient ground for discharge, noting
that the order was given to Oldham in his capacity as a
union representative. Therefore, the arbitrator deter-
mined that Oldham's suspension subject to discharge be
reduced to a _3-week suspension and that he be reim-
bursed for all earnings lost beyond the first 3 weeks of
his suspension . Oldham returned to work on May 15,
1980, pursuant to this award.
In a related arbitration proceeding held on April 29,
1980, another arbitrator found, on May 30, 1980, that the
Union's position'regarding the combining of union coin-
mittees was correct and that mining employees and
trucking employees, albeit in separate bargaining units
with separate seniority lists, could;,under the applicable
collective-bargaining agreement, comprise one joint
health and safety committeemd one joint mine commit-
tee.
Respondent appealed this award and despite the arbi-
trator's decision, issued the following memorandum,
dated June 30, 1980, to the various union committeemen:
We have received notification of the selection of
mine committees which include members of both
the Trucking Division and Mine 9.
You are hereby cautioned that the memorandum
issued to all committee members dated March 10,
1980, is still in effect and will be strictly enforced.
I am aware that this issue has been arbitrated and
is in the process of appeal. Until this appeal process
has been exhausted and a final order handed down
by the Review Board or the Courts, as the case
may be , the aforementioned memorandum will still
be in effect.
For you who may not have received the memo-
randum, in essence it states "You are hereby ad-
vised that as a committee you only have authority
in your own seniority unit and you will not com-
bine committees or attempt to interfere in the activi-
ty of any unit outside of your own."
"Any interference by, a committeeman in any ac-
tivity of a seniority unit other than your own will
,be considered as a complete disregard of this direc-
tive and will result in discharge for insubordina-
tion."
GARLAND COAL & MINING COMPANY
/s/L. -G. Ballard, Jr.
L. G. Ballard, Jr.
General Superintendent
Thereafter, on July 16, 1980 , Respondent 's appeal to
the arbitration review board ,' established by the collec-
tive-bargaining agreement , was withdrawn by the Bitu-
minous Coal Operators ' Association . Respondent main-
tains that it did not give the Association such authority.
to withdraw its appeal and takes the position that -the
aforementioned June 30 memorandum remains in effect.
However, Respondent presented no evidence demon-:
strating an attempt to refile its original appeal to the arbi,
tration review board.- -
C. Analysis and Conclusions
1. The layoffs of William Davis; related threats
It is clear, and there is no contention to the contrary,
that the December 8, 1979 'and May 4, 1980 layoffs of
Davis and other employees were motivated by valid
business reasons. Moreover, it is clear that Davis was
correctly selected on each occasion, being among the,
least senior employees on Respondent's seniority list, and
would have been laid off regardless of whether the
layoff was deemed to be a technical layoff or a realign-
ment. Even Davis appears to agree that he was properly
selected as one of the employees to be laid off on each
occasion. As aforementioned, I do not find that follow-
ing the December layoff, Davis-was given an unfair test
of his ability to operate the loader. Nor does the record
show that following the May 4 layoff, Davis would have
been recalled earlier but for his activity in presenting
grievances; or that the realignment procedure was ap-
plied to him in a different fashion than to other, employ-
ees. Indeed, it was at Davis' insistence, I find, that the
realignment procedure was instituted and followed.
Further, the alleged December 6, 1979 threat that
Davis was selected for realignment or layoff as a result
of filing the aforementioned reclassification grievance is
not-supported by the evidence. The record is clear that,
as found above, Davis' layoff was not discriminatorily
motivated. Moreover, assuming arguendo that Assistant
Superintendent Lawley made. the statement attributed to
him by Grievance Committeeman Bratton concerning
Davis' realignment, such a statement is ambiguous.•Addi-
tionally, I was not impressed by Bratton's uncertain testi-
mony and I credit the testimony of Assistant Superin-
tendent Lawley,who appeared to have a much more ac-
curate recollection of the details of the events on De-
cember 4 and 6, 1980. I thus find that Lawley did not
make the statement attributed to him by Bratton.
Regarding the May 14, 1980 question by Superintend-
ent Heard, who asked Davis if Davis was harassing him,
such a question appears quite understandable under the
circumstances. Thus, the Union, pursuant to a` prior re-
quest by Respondent, had permitted Respondent to insti-
tute a layoff rather than a realignment and Davis' subse-
quent objection to this procedure caused Heard some
consternation. However, despite Respondent's admitted
pique over Davis' grievance, Davis' position was found
to be correct by Respondent and the realignment proce-
dure was thereafter followed with no demonstrable detri-
ment to Davis.' I shall therefore also dismiss this allega-
tion of the complaint.
* Indeed , should there have been a delay in recalling Davis due to the
application of the realignment procedure which Davis, rather than Re-
spondent, insisted upon, the responsibility for such delay must be attnbut-
able to Davis rather than Respondent.
GARLAND COAL & MINING CO
2. Donnie Oldham's discharge; related threats
The Board has stated in Suburban Motor Freight,5 that
it "will no longer honor the results of an arbitration pro-
ceeding under Spielbergs unless the unfair labor practice
issue before the Board was both presented to and consid-
ered by the arbitrator." In the instant case, there is no
evidence that that arbitrator considered the salient issue
of whether Oldham's alleged "insubordination" of refus-
ing to sign the March 10, 1979 memorandum constituted
union and/or protected concerted activity within the
meaning of the Act. Thus, it is clear, and I find, that the
arbitrator did not consider the statutory issue and that
therefore deferral to the arbitration award is not war-
ranted. See Albertson, Inc., 252 NLRB 529, 535 (1980);
Herman Bros., 252 NLRB 848, 852 (1980); Hammermill
Paper Co., 252 NLRB 1236 (1980); Consolidated
Freightways, 253 NLRB 988, 994 (1981).
It is beyond dispute that Oldham, in refusing to sign
the March 10 memorandum, was acting in his official ca-
pacity as president of the Local Union, and as a commit-
teeman on various committees, in furtherance of the
Union's position that the Union had the contractual right
to appoint composite committees, consisting of both mine
workers and truckdrivers, to deal with Respondent.
Indeed, the correctness of the Union's position has since
been upheld by an arbitrator. Moreover, even if incor-
rect, Oldham's good-faith conduct in asserting such a po-
sition is nevertheless protected. See Robert Martin Con-
struction Co., 214 NLRB 429-430 (1974). It is clear that
Oldham's refusal to sign the memorandum as ordered
was nothing.more than an overt expression of his belief
that Respondent's position was incorrect and was cer-
tainly not an act which may reasonably and objectively
be viewed.as insubordinate. To discharge a union repre-
sentative who, in good faith, is attempting to assert a po-
sition'regarding the representation of employees under
such circumstances as are involved herein, is inherently
destructive of important employee rights and clearly vio-
lates Section 8(a)(3) and (1) of the Act. I so find. See
Pittsburgh Press Co., 234, NLRB 408 (1978); Postal Service,
252 NLRB 624 (1980); Hammermill Paper Co., supra;
Gould Corp., 237 NLRB 881 (1978), revd. on other
grounds 612 F.2d 728 (3d Cir. 1979); Caterpillar Tractor
Co., 242 NLRB 523, 535 (1979).
Similarly , it is axiomatic that to threaten union com-
mitteemen with discharge for espousing views and en-
gaging yin activity ,supportive of the Union's interpreta-
tion of the collective-bargaining agreement, whether
such views may be correct or incorrect, is violative of
the Act: Thus, I find that by threatening union commit-
teemen with discharge for engaging in such activities,
Respondent has violated and is violating Section 8(a)(1)
of the Act as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
witin the meaning of Section 2(6) and (7) of the Act.
5 247 NLRB 146 ( 1980).
6 Spielberg Mfg. Co, 112 NLRB 1080 (1955)
969
2. The Union is a labor. organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging employee Donnie Oldham, Respond-
ent has violated Section 8(a)(3) and (1) of the Act.
4. By threatening employees with discharge for engag-
ing in union activity, Respondent has violated and is vio-
lating Section 8(a)(1) of the Act.
5. Except as found above, Respondent has not engaged
in other unfair labor practices as alleged.
THE REMEDY
Having found that Respondent has violated Section
8(a)(1) and (3) of the Act, I recommend that it be re-
quired to cease and desist therefrom and from in any like
or related manner interfering with, restraining, or coerc-
ing its employees in the, exercise of-their rights under
Section 7 of the Act. Moreover, Respondent shall be re-
quired to make whole employee Donnie Oldham, who
has previously been reinstated, for any loss of wages or
other benefits he suffered as a result of his suspension or
discharge. Backpay shall be computed in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as prescribed in Florida Steel Corp., 231 NLRB
651 (1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962). Additionally, Respondent shall be required to
post an appropriate notice attached as "Appendix" and
remove any record of the discharge or suspension of
Oldham on March 13, 1980.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER -
The Respondent, Garland Coal & Mining Co., Stigler,
Oklahoma, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging, suspending, or otherwise discriminat-
ing against employees for engaging in protected union
and concerted activity while performing the duties of
union president or union committeemen.
(b) Threatening employees with discharge, suspension,
or other reprisals for engaging in union activity in the
performance of their duties as union president and union
committeemen.'
(c) In any like or related manner interfering with, re-
straining, or coercing employees in,the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Make whole Donnie Oldham for any loss of earn-
ings occasioned by his disciplinary suspension or dis-
charge on March 13, 1980, in the manner described in
the'section of this decision entitled "The Remedy "
If no exceptions are filed ' as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
970- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Remove any record of the discharge or suspension
of Donnie Oldham on March 13, 1980. -
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) ' Post at its Stigler, Oklahoma place of business
copies of the attached notice marked "Appendix."8
Copies of the notice, on forms provided by the Regional
Director for Region 16, after -being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
9 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice ,readmg "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, suspend , or otherwise disci-
pline or take any other discriminatory action against em-
ployees because they engaged in protected union and
concerted activities while perfoming the duties of union
president or union committeemen.
WE WILL NOT threaten employees with discharge, sus-
pension , or other reprisals for engaging in union activity
in the performance of their duties as union president and
union committeemen.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees . in the exercise of
their rights to self-organization, to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, to engage in con-
certed activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities.
WE WILL reimburse Donnie Oldham for any loss of
wages or other benefits occasioned by his discharge or
suspension on March 13, 1980 , plus interest.
WE WILL remove from our records any and all refer-
ences to the suspension or- discharge of Donnie Oldham.
.
GARLAND COAL & MINING CO.
Norman W. Eckhart, Esq., of Fort Worth ,- Texas, for the
General Counsel.
Lynn Paul Mattson , Esq. (Nichols & Wolfe, Inc.), of Tulsa,
Oklahoma, for the Respondent.
William C. Nulton, Esq. (Shughart, Thompson &' Kilroy)
of Kansas City, Missouri , for the Respondent (on the
brief).
August Randall Vehar, Esq., of Washington, D.C., for the
Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE - _ -
GERALD A. WACKNOV, Administrative Law Judge.
By Order dated November 23, 1981, the Board remand-
ed the matter to me with the direction that the record in
Case 16-CA-9176 be reopened, that additional evidence
be admitted, and that a supplemental decision be issued.
Thereafter, by Order dated November 30, 1981, I re-
opened the record and set a date for the reopened hear-
ing, pursuant to the Board's direction.
The reopened hearing was held on May 4, 5, 6, and 7,
1982, in Muskogee, Oklahoma. The parties were afforded
a full opportunity to be heard, to call, to examine and
cross-examine witnesses , and to introduce relevant evi-
dence. Since the close of the hearing, briefs have been
received from the General Counsel, counsel for Re-
spondent and counsel for the Charging Party.
On the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted,'
I make the following findings and conclusions.
The December 8, 1979 layoff
On December 8, 1979, employees William Davis and
Ronnie Nixon were laid off (technically, they were re-
aligned out of a job). They were not reinstated until Jan-
uary 4, 1980. With the exception of Dale Apple, infra,
Davis and Nixon were at the bottom of Respondent's se-
niority list.
According to Donald Lawley, then assistant mine su-
perintendent, their layoff was occasioned by a lack of
work due to various factors. Lawley testified on this
point that the removal of "two scrapers and a paddle
wheel" from Respondent's premises and the breakdown
of certain belly dump trucks, was the cause of the layoff.
As a result, there was simply less work to-be performed,
and the remaining available-work was distributed among
employees who were not laid off. Davis was classified as
a repairman at the time, and a substantial part of his job
was operating a grease truck to service the mobile equip-
ment. Because of the removal of the aforementioned
equipment and the breakdown of other equipment, the
work on the grease truck was cut from three shifts to
two shifts. Also, according to the testimony of Davis,
the big front-end loader was inoperable from about De-
cember 8 to 10. However, it is clear that the layoff
i At the hearing and in its brief, the Respondent has requested that it
be reimbursed for attorney's fees and expenses , pursuant to the Board's
remand order. -
GARLAND COAL & MINING
would have occurred regardless of the problem with the
front-end loader.2
'the. record is clear that although employees` were
given a permanent classification,' it had always been Re-
spondent's' practice to work people out of classification.
As employee Leon. Riddle, called by the General Coun-
sel as a witness , testified, "The way we worked out
there, out .of classification, - we didn't ..really know for
sure what our classification was." Thus, during the
layoff, the work performed by Davis and Nixon may
have been performed. by any one of the' more than 30
employees with greater seniority, depending on such
variables as the weather, the availability of equipment
which was continually breaking down, and the daily job
requirements . As a result of working people out of classi-
fication and apparently the general manner in which Re-
spondent operated the business, there were innumerable'
grievances filed. Thus, William P. Heard, former mine
superintendent, - testified that there were approximately
40 to. 50 grievances filed by the Union or individual ein-
ployees, 3 and Davis filed "a couple or three of them."
Leon Riddle.testified that as of about May 6, 1980 (the
date of the second'layoff, infra) he had two grievances to
be filed but "I couldn't get'them filed because of [sic] ev-
erybody had a grievance, I was-standing in line to file
my grievance."
No one was hired to perform the work of Davis or
Nixon during the December layoff. Neither Davis' testi-
mony nor the testimony of any other employee demon-
strates that 'the 'reasons for the layoff, enunciated by
Lawley, whom I find to be a credible witness, were fab-
ricated. Nor did the union committee, when advised of
the necessity for layoff on December 4'and'again on De-
cember 6, take the position that Respondent's reasons for
the layoff were unfounded, - or that Davis and Nixon
should be given other work rather than be laid off.
.In effect, the -General Counsel argues that Davis
should have been reinstated prior to January 4, 1980, as
there was available work which he was capable of per-
forming. Respondent readily admits that Davis was a
competent worker and was qualified' to work in many
classifications. However, Respondent maintains that it
exercised its discretion-to operate its business in the most
economically advantageous -manner which, in Respond-
ent's opinion, did not- necessitate, at that time, the serv-
ices of either Davis or Nixon.
On -being laid off, an employee submits a, "panel" or
bidding sheet, both- the Union and' company retaining a
copy, listing 'the jobs he deems himself qualified to per-
form. Davis testified' that upon his December 8 layoff, he
submitted a panel sheet listing the following jobs: me-
chanic, belly dump operator, scraper operator, bull dozer
operator, repairman, and apparently front-end loader op-
erator. J
Having paneled for front-end loader operator, Davis
was entitled to take a test 'for that position in order to'
2 Mine Superintendent Heard testified that the layoff on December 8
was caused solely by the breakdown of the front-end loader This testi-
mony differs - from that of both Lawley and Davis, and I find that the
reasons for the ' layoff were 'as credibly explained by Lawleys
The record does not specify when these grievances were filed, but it
appears that they were filed during the period material herein.
CO. . 971
dump Dale Apple who was immediately below him in
seniority. Davis was given this test on December 10. His
testinionyis'as follows. • - '
At approximately 10:00 o'clock' I' came into' the
office, which is at the enterence [sic] of the mine,
and met Bill Heard.
And we got in his pick up and went down where
the'loader. was at. And at that point, the loader was
pulling a dozer out of the mud holes, with a cable,
he carried me back to the office and let me out, and
about five- or ten minutes later, Mr. -Lawley came
'and got me.'
We went down to where they had the loader,
about-approximately 200 yards from where it' was
pulling the-dozer out.
-And they told me to load a belly =dump out of a
spoil pile: Mr. - Lawley said' from this point',to that
point, load right there.
I pulled up to get the first bucket of mud of the
spoil, and F& stuck and so I asked Mr. ;Lawley
what he wanted to do then: ' • - -
And he said, "Well, dump.it and get out, and
move over here."
Which was approximately, oh, ten yards'or so
from there. -
So, I dumped my bucket, pushed myself back out
for the bucket, moved the loader over. I loaded the
belly dump. I parked the loader and got off and got
back in the pick up with Mr. Heard and he told me
that he had disqualified me, and he said probably in
a few days I could run it okay, but he said that they
wasn 't [sic] running a training school.
And I told Mr. Heard, I said, "Well, I had-to try
because it was my right to atest."
And he carried back-he carried me back-to the
office and I- got in my car and went home.
Lawley credibly testified that when he approached
Davis during the course of the test:. .
[Davis] had it stuck and the bucket full. And
couldn't back up. I' told him he should dump the
bucket and work his loader, out with the, bucket.
And 'I am assuming that he did that, I do not know.
Lawley and Heard testified, in effect, that in their
opinion,, Davis, who had never operated the front-end
loader during his ' employment with Respondent, was
simply not ready to operate the loader without more ex-
perience. Both Lawley and Heard admittedly believed
that Davis could become a 'qualified loader operator in a
short period of time. However, they interpreted the con-
tract provision giving Davis the right to, take the test as
meaning that in order to successfully bump another em-
ployee.the person -being. tested must, at that point in time,
without further, training or experience, be qualified. to
perform the job. Significantly, neither Davis nor the
Union -.complained that the test was unfair or that
Heard's statement that Davis would be qualified to oper-
ate the front-end loader, "'In. a few days" was, in effect,
an admission that Davis -should have bumped Dale
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apple. The record is clear that there are no rules or
guidelines governing the administering of the test. Inso-
far as the record shows, no other such tests have been
administered. While the General Counsel presented evi-
dence that on other occasions, not during a layoff situa-
tion, several other employees were given longer periods
of time, as much as 2 hours, to demonstrate their ability
to operate the front-end loader, such occasions were not
during .the course of or pursuant to a "test," but were
rather of an' instructional or training nature. Moreover,
neither of the individuals were utilized thereafter as
front-end loader operators.
- The May 6 layoff
On January 4, 1980, Davis was reinstated and reclassi-
fied as a belly dump driver. Thereafter, prior to May 6,
1980, there were, according to Davis' testimony, several
additional short-term layoffs of employees, including
Davis, due to the front-end loader being down. These
various layoffs were of short duration, perhaps 1 or 2
days. There is no contention that Davis should not have
been laid off on these occasions.
The layoff on May 6 was due to the breakdown of
certain machinery, primarily the front-end loader. Re-
spondent's records show that on that date two front-end
loader operators, Jerome Neal and L. D. Maxwell, were
laid off; and that six belly' dump drivers were also laid
off, Jerry Collins, David Bratton , Oral Epley, Rory Rob-
ertson, Ronnie Nixon, and William Davis. It was stipulat-
ed that at least five and perhaps more of these individ-
uals had filed grievances for various reasons prior to the
layoff. The complaint does not allege that the layoff,
even as pertains to Davis, was discriminatory.
Apparently the equipment was repaired by -May 12,
and on that day all of the aforementioned employees,
with the exception of Jerry Collins, Rory Robertson,
Ronnie Nixon,'and William Davis returned to work. Re-
spondent attempted to recall Collins, but he elected not
to return as a belly dump driver, and was terminated.
Thereupon, as a result of the bidding procedure L. D.
Maxwell, formerly a front-end loader operator, got the
job. Rory Robertson returned to work as a belly dump
driver on May 26 after successfully bidding for the job.
Nixon was recalled as a utility person about June 4.
Davis was not recalled until August 11.
During the 3-month period that Davis was laid off,
there were' some 20 days when employees classified as
other than belly dump drivers operated belly dumps.
The record shows that there were a number of jobs
posted after the May 4 layoff. As noted above, a belly
dump job was apparently posted during the week of
May 12, and L. D. Maxwell bid into this position; a re-
pairman's job was put up for bid on May 14 and was
filled thereafter; on May 16, according to the testimony
of Rory Robertson and Leon Riddle, two jobs were put
up for bid, a truckdriver job, which Robertson got, and a
dozer operator job, which was awarded to another em-
ployee. Apparently in early July, another belly dump
driverjob. was put up for bid and. Kenneth Lindsay, a•
mechanic, was awarded this job; after working in this
classification for the remainder of July, Lindsay bid on
and was returned to a mechanics job; a utility job was
apparently posted, and Nixon received it on June 5; on
June 9, Don Grigsby was made a loader operator, and
primarily held this job thereafter. Davis was qualified to
bid on each of these jobs. '
Following the layoff, according to the testimony of
then Assistant Mine Superintendent Lawley, there were
three permanent belly dump operators, namely, L. D.
Maxwell, Oral Epley, and David Bratton. On May 27,
Rory Robertson was recalled, and thereafter there were
four permanent belly dump drivers. Between May 12 and
27, certain other employees were utilized as belly dump
drivers on a temporary basis, due to a combination of
factors including the breakdown of their equipment, the
needs of Respondent, and the requisite posting period
which was required under the contract before Robertson
could be recalled. Lawley testified that following the
layoff there was a need for only four permanent drivers,
as the Company was running two belly dumps per shift,
apparently due to the fact that on a `short haul,"4 a
third belly dump would be idle for an unacceptable
period of time. The third belly dump was a spare pri-
mary utilized when one of the other belly dumps was in=
operable although, as noted above,. there were some 30
days during the layoff period when more than two belly
dumps were utilized.
In essence , Respondent takes the position that Davis,
Robertson, and Nixon were not recalled on May 12 be-
cause their services were not immediately required, and
that to the limited extent necessary, their work was being
performed by more senior employees, 'sometimes work-
ing out of their classification.5
Prior to the layoff, Donald Grigsby, an employee
lower in seniority than, either Davis, Nixon, or Robert-
son, was classified as a utility person: Insofar as the
record shows, either Davis, Nixon, or Robertson was
qualified to perform this utility work and could have
successfully bid into this position at any time during the
layoff, thereby replacing Grigsby. Neither elected to do
so.e
Respondent maintains that during the layoff period it
would have liked to call in the laid-off employees, in-
cluding Davis, on a daily or temporary basis when the
amount of available work so warranted. However, due
to the understanding reached with the Union as a result
of the settlement of Davis' May 14 grievance, which re-
quired that Respondent fill the job vacancies in accord-
ance with the formal contract bidding procedure, the
jobs for which they were temporarily needed would
have to be posted for about a week before they could be
filled. Such a delay between the posting and filling of a
* Apparently a short haul is the distance between where the belly
dump is loaded by front-end loader and where it dumps its load
5 Contrary to the contention of the General Counsel , the record does
not show that the grievances filed by Davis and apparently Robertson on
about May 14 was settled on the basis that Respondent would no longer
work people, on a temporary basis, out of their permanent classification
Rather, Respondent had always operated, and continued to operates in
this manner Significantly , no union representative testified to the con-
trary
6 Having found that Davis could have bumped Grigsby, and that
Davis was obviously aware of this fact, I deem it unnecessary to decide
whether Heard and/or Lawley specifically advised Davis of this about
May 14
GARLAND COAL & MINING CO.
job created the likelihood that the work, due to its tem-
porary nature, would no longer be available after the
posting period. As a consequence, Respondent found it
more expedient to have the work performed by the cur-
rent complement of employees, when necessary, by
working them out of classification.
The record shows that during the layoff period the
four permanent belly dump drivers, as well as total com-
plement of employees, worked a considerable amount-of
overtime. The General Counsel contends that this consti-
tutes evidence demonstrating that Respondent could
have used the services of the laid-off employees 7 How-
ever, the payroll records show that during this period
there were initially. only three and then four permanent
truckdrivers upon the return of Robertson, as noted
above. This is consistent with Lawley's testimony that
during the great majority of time there were only two
belly dump trucks per shift being utilized, and that a
third belly dump truck was used as a spare due to the
fact that it was common for one belly dump truck to be
inoperative at any given time . Further, at that point in
time , there was a "short haul" so that two belly dump
trucks were usually able to keep the one front-end loader
busy for the entire shift. Under such circumstances, the'
fact that- four belly dump drivers worked overtime does
not 'mean that there was sufficient work available for an-
other belly dump driver.
Analysis and Conclusions
On the . basis of the foregoing , I conclude that the
record is insufficient to warrant the finding that Davis
was discriminated against on any occasion . I reaffirm and
7 The General Counsel takes the position that, although the complaint
alleges only that Davis was discriminated against by Respondent 's failure
to recall him on May 12, nevertheless , Nixon and Robertson were dis-
criminated against also Thus, the General Counsel's theory is that Rob-
ertson was a grievance filer whom Respondent wanted to rid itself of,
and Nixon was an "innocent" employee whom Respondent had to lay off
to get to Davis and Robertson in order to "commit the perfect crime "
The complaint does not allege that the layoff itself, even as pertains to
Davis, was discriminatory
973
incorporate by reference my findings and conclusions set
forth in my initial decision.
I- find that the record is insufficient to show that the
December layoff was occasioned by other than legiti-
mate business considerations.8 Regarding the testing of
Davis for the job of front-end loader operator, I find that
both Lawley and Heard were of the opinion that Davis
was not entitled to bump Dale Apple, according to their
reasonable understanding of the contractual testing pro-
cedure, and that their failure to permit Davis to bump
Dale Apple was not influenced by the fact that Davis
had filed a grievance. The test of about 10 minutes dura-
tion was sufficient, I find, to ascertain whether Davis
could then immediately replace Dale Apple in the classi-
fication. I find unmeritorious the General Counsel's argu-
ment that the test, to have been legitimate, should have
lasted an hour or so, as the record indicates that Davis'
ability could be evaluated in the time alloted.
I further find that the record evidence is insufficient to
show that Davis' failure to be recalled between May 12
and August 11 was discriminatorily motivated, as the
evidence presented by the General Counsel does not
overcome the plausible business reasons enunciated by
Lawley, who appeared to be a credible witness.
ORDER
The complaint in Case 16-CA-9176 is dismissed in its
entirety.
8 The testimony of Elbert-Owens, a union official , that following the
December 6, 1979 grievance meeting over Davis' reclassification gnev-
ance, Lawley "said something to the effect that he could virtually elimi-
nate this grievance by going through the realignment process," does not
shed any more light on the matter than the similar testimony of Union
Committeeman Bratton at the initial hearing Contrary to the apparent
contention of the General Counsel , such a statement does not necessarily
mean that Davis was being laid off (realigned) for discriminatory reasons,
but rather may be reasonably interpreted as a meaning that since Davis
was being laid off in any event , due to his low seniority, his classification
would make no difference