Gatliff Coal Co.

National Labor Relations Board - Board Decisions

Feb 21, 1991

301 N.L.R.B. 793 (N.L.R.B. 1991)

793
301 NLRB No. 118
GATLIFF COAL CO.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
The judge inadvertently stated that Vivian Cordell testified that there were
times when Cordell would have to leave her work station for a few hours;
Cordell actually testified that it was Charging Party Rebecca Carpenter who
would have to leave.
1 All dates are 1989 except where otherwise noted.
2 Rebecca Carpenter and Diane Taylor were impressive witnesses both of
whom testified in a straightforward, detailed, certain, and believable manner.
Their testimony is consistent with respect to events of which both have knowl-
edge and provide complementary, believable detail to each other’s recollec-
tions. William Stark and Clark Taylor, on the other hand, gave meandering
and circumlocutory testimony couched largely in generalities with respect to
critical matters. The testimony of Stark and Clark Taylor was not as con-
vincing as that of R. Carpenter and D. Taylor, nor was their demeanor as im-
pressive as that of the two women. Accordingly, the testimony of Stark and
Clark Taylor, in the absence of any other convincing corroborative evidence
thereof, is not credited where it conflicts with that of R. Carpenter and D. Tay-
lor. Moreover, Respondent’s failure to call Jim Shackleford, Respondent’s
president, Personnel Director Jim Faulkner, Vice President Fred Maggard, and
Production Manager Bob Zik as witnesses, all of whom allegedly complained
of the performance of R. Carpenter and D. Taylor, and two of whom,
Shackleford and Faulkner, played critical roles in the decision to discharge ac-
cording to Clark Taylor, warrants an inference their testimony would not have
supported Respondent’s defense. There is no explanation proffered by Re-
spondent for its failure to call these persons who are presumably friendly to
Respondent’s cause. In arriving at my findings of fact I have weighed these
considerations together with the testimony and exhibits of record and the rea-
sonable probabilities in the circumstances. Testimony that might appear to
conflict with my findings of fact has been examined and rejected as less cred-
ible than that upon which I have relied. I have credited parts of witnesses’
testimony while not crediting other parts, which is neither unusual or im-
proper. NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir. 1950), va-
cated on other grounds 340 U.S. 474 (1951).
Gatliff Coal Company and Rebecca L. Carpenter.
Case 9–CA–27092
February 21, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On September 28, 1990, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Gatliff Coal Company,
Nevisdale, Kentucky, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Deborah R. Grayson, Esq., for the General Counsel.
Robert L. Thompson, Esq. and Joseph M. Freeman, Esq., for
Gatliff Coal Company.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me at Williamsburg, Kentucky,
on May 22 and 23, 1990, pursuant to charges timely filed
and served on December 13, 1989, and complaint issued on
February 2, 1990, alleging Gatliff Coal Company (Respond-
ent) discharged Rebecca Carpenter and Diane Taylor on Sep-
tember 26, 1989,1 because they engaged in protected con-
certed activity, and thereby violated Section 8(a)(1) of the
National Labor Relations Act (the Act). Respondent agrees
it discharged these two women on September 26, but asserts
the discharges were for lawful cause rather than the reason
alleged in the complaint.
After considering the entire record, the testimonial de-
meanor of the witnesses as they testified, and the able
posttrial briefs of the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with office and place of busi-
ness in Nevisdale, Kentucky, is engaged in coal mining in
and around eastern Kentucky. During the 12 months pre-
ceding the issuance of the complaint, Respondent, in the
course and conduct of operating these operations, sold and
shipped products, goods, and materials valued in excess of
S50,000 directly from its Kentucky facilities to points located
outside the State of Kentucky. Respondent has been at all
times material to this proceeding an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. SUPERVISORS AND AGENTS
The complaint alleges, Respondent admits, and I find that
at all times material, the following named persons have occu-
pied the positions set forth opposite their respective names
and are now, and have been at all times material, supervisors
of Respondent within the meaning of Section 2(11) of the
Act and agents of Respondent within the meaning of Section
2(13) of the Act:
Jim Shackleford President
Clark Taylor Vice President
Jim Faulkner Personnel Director
William Stark Assistant Controller
III. THE ALLEGED UNFAIR LABOR PRACTICES2
Rebecca Carpenter has been employed by Respondent
since August 1987 as a receptionist/switchboard operator.
Diane Taylor began her employment on June 4, 1979, and
was a payroll clerk for the 3 years immediately preceding her
discharge. Both women were given excellent ratings on job
understanding, job performance, job productivity, depend-
ability, and cooperation on their annual evaluations signed by
William Stark and Clark Taylor on or about September 8,
794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 D. Taylor and R. Carpenter credibly testified Croley and Hamblin admitted
starting the rumor. Hamblin, testifying on other matters, does not deny her part
in the rumor.
4 Stark does not deny this testimony.
1988. Respondent raises no question concerning their work
performance in 1988.
It is not uncommon for employees to form into small
groups of similar likes and dislikes which create problems in
the workplace because these groups generate rumors and in-
trigue against each other. This, I conclude, is what happened
at Respondent’s establishment and resulted in the rumors
which General Counsel alleges caused complaints to manage-
ment by Rebecca Carpenter and Diane Taylor for which they
were discharged. To understand the genesis of the rumors
complained of, and to provide some slight assistance in eval-
uating the testimony in this case, a brief recitation of the per-
sonal relationships involved here is helpful. A central figure
is Larry Strunk, an electrical systems analyst, who had a per-
sonal relationship with employee Vickie Croley, and is a
friend of the alleged discriminatees and their husbands.
When the relationship between Strunk and Croley soured,
Croley and Karen Hamblin circulated rumors that Strunk was
having an affair with R. Carpenter and D. Taylor.3 Strunk
testified and is credited that William Stark, Respondent’s as-
sistant controller, also dated Vickie Croley, resented Strunk,
and gossiped to others about him.4
The rumors about R. Carpenter, D. Taylor, and Strunk ap-
parently started in the spring of 1989. D. Taylor attempted
to squelch the rumors in August by asking Croley and
Hamblin to stop circulating them. On or about August 13,
she told Stark what she had done. He told her not to worry
about it. R. Carpenter had earlier talked to Hamblin about the
rumors, and advised Clark Taylor, vice president and con-
troller, that Hamblin was the rumor monger. He advised her
to ignore the rumor.
On the afternoon of August 15, William Stark called R.
Carpenter into his office. He advised her the rumor had not
died down and Clark Taylor had said she should be fired as
an example to deter the rumor, but had directed him to tell
R. Carpenter to stay in her office and do her job and there
would be no problems. He told R. Carpenter just to do as
she had done in the past and that she had always done a
good job. According to R. Carpenter, denied by Stark, he
propositioned her for sexual favors. This is only significant
because her claim caused the Respondent considerable con-
cern. I make no finding regarding the truth of this claim. He
then had D. Taylor called in. Then he said that Clark Taylor
had asked him about a rumor that Strunk was having an af-
fair with two women at Gatliff Coal, and he, Stark, thought
D. Taylor and R. Carpenter were the two women. He then
said that Clark Taylor had wanted to fire them as an exam-
ple, but he had defended them by advising he had no prob-
lems with them and that when he found them out of their
duty stations they were doing their job. Stark instructed them
to stay in their work area as much as possible and report to
him, Clark Taylor, or accountant Deborah Huddleston if they
had to leave the accounting department. According to R. Car-
penter, Stark also said Clark Taylor had told him to similarly
instruct everyone. Clark Taylor and Stark agree that Stark
was instructed to tell these two ladies to stay in their work
areas, spend less time on the phone, and report to Clark Tay-
lor or Stark when leaving the department. Inasmuch as Hud-
dleston is in charge when the two men are absent, I conclude
Stark did name Huddleston as an appropriate person to
whom to report. From the testimony of Stark and Clark Tay-
lor, questionable though it may be in other respects, it ap-
pears, and I find, that Clark Taylor initiated the August 15
meeting by directing Stark to meet with the two women. The
record shows no reason for Stark to attempt to ingratiate
himself with R. Carpenter and D. Taylor by falsely telling
them he had talked Clark Taylor out of firing them because
they were the subjects of the rumor. He did so tell them, and
I believe it likely, notwithstanding his protestation and those
of Clark Taylor to the contrary, that he correctly related his
conversation with Clark Taylor to the women as they report
it. Finally with respect to this August 15 meeting, Respond-
ent placed a document in evidence purported by Stark to be
a memorandum setting forth what there occurred. It reads, in
its entirety, as follows:
On August 15, 1989, I met with Becky Carpenter
and Diane Taylor to advise them that their work had
become sub-standard and that they were spending too
much time away from their work stations and too much
time was being spent in areas where they had no busi-
ness.
I told them we had too much to do to waste time
and from now on everyone was to notify me or Clark
before leaving their work stations and I advised them
to stay out of other people’s offices and to keep other
employees out of their offices.
I have credited the version of that meeting advanced by D.
Taylor and R. Carpenter. I do find it interesting however that
the memo states ‘‘everyone’’ was directed to notify of their
absences from the area, thus indicating there may well have
been a general practice of unnecessarily leaving the working
area. In any event, the memorandum has little probative
weight. It was not prepared until September 15, 1 month
after the event, it is not a substantially verbatim recitation,
clearly is not a description of everything that occurred in a
meeting in excess of 3 hours, does not relate the conversa-
tion credibly testified to by D. Taylor and R. Carpenter, and
is nothing more than a self-serving, incomplete, and
unpersuasive summary of little evidentiary value.
R. Carpenter and D. Taylor decided to talk to Clark Taylor
because they feared losing their jobs over the rumor, but
Clark Taylor was out of town on business. They decided
they would talk to Respondent’s president, Jim Shackleford.
They met with him at 7 a.m. on August 16, told him they
were concerned that they might be fired to stop a rumor, and
reported what Stark had said to them. This included R. Car-
penter’s claim, not witnessed by D. Taylor, that Stark had
sought her sexual favors. Shackleford assured them they
could not be fired to set an example, declined to speak to
Hamblin and Corley as they requested, and suggested they
just let the rumor die out by itself. He also advised them to
talk to Clark Taylor. As previously noted, Shackleford did
not testify.
Shackleford told Clark Taylor that R. Carpenter and D.
Taylor were concerned about the rumors and that Stark had
allegedly made a sexual suggestion to R. Carpenter. I credit
Taylor on this point because it is probable that Shackleford
did so instruct. Clark Taylor then met with the two women
795GATLIFF COAL CO.
5 Clark Taylor can’t remember if the check incident was mentioned.
6 Clark Taylor thinks the continued presence of the women in Strunk’s of-
fice was mentioned during the exit interviews.
on Friday, August 18 or Monday, August 21. The date is not
significant. Taylor and the two women are in substantial
agreement as to what happened at this meeting. Clark Taylor
denied telling Stark he wanted the two women fired, stated
they would not be fired because of a rumor, and told them
Stark was instructed to tell them to spend less time on the
phone and to stay in their work areas. He also told them
their work had been good and the only problems he had with
them was that D. Taylor through no fault of her own had
failed to cause checks to be ordered in the spring, and that
R. Carpenter was not as enthusiastic an employee as she had
been because she was being cross-trained and being moved
from one job to another, but this would be taken care of.
After these exchanges between the three, they met with
Stark. It was agreed by the participants that there may have
been some misunderstanding concerning Stark’s alleged sex-
ual remarks. This meeting closed with instructions from
Clark Taylor that Stark was the supervisor, should be
obeyed, and should treat the women fairly. He opined that
the rumor would blow over, and instructed the two women
to stay in their work area and to inform their supervisor if
they had to leave that area for any reason.
On the morning of September 26, R. Carpenter and D.
Taylor had separate meetings with Clark Taylor, Jim Faulk-
ner, and Jim Shackleford wherein they were discharged.
Clark Taylor testified that he told D. Taylor she was fired
for insubordination to Stark and being away from the work
area, and told R. Carpenter the reasons for her dismissal
were absence from her work area, her work had fallen off,
and she had incorrectly typed a letter the previous week. D.
Taylor and R. Carpenter agree they were so told, but credibly
testify to additional comments made. D. Taylor recalls that
Clark Taylor advised her she was terminated at Stark’s re-
quest because she misused the telephone, was generally in-
subordinate and uncooperative in the previous couple of
months, was away from her work area, and had failed to
order checks 6 months previously.5 Clark Taylor further stat-
ed to D. Taylor that Larry Strunk had said she and R. Car-
penter hindered him in his job performance by calling him
on the phone, coming to his office, and stopping him from
working.6 R. Carpenter relates that Clark Taylor said he
would have to let her go because Stark had reported she
would not do as he asked, she was insubordinate, he could
not get any work out of her, and she was on the phone con-
stantly. Clark Taylor added that she had taken 2-1/2 hours
the previous week to type a letter which Teague had retyped
in 15 minutes because hers was wrong. As she left the meet-
ing, Faulkner added that Larry Strunk had complained she
was calling and harassing him. The failure of Faulkner and
Shackleford to testify persuades me their testimony would
not have contradicted D. Taylor or R. Carpenter. Larry
Strunk’s testimony that he never spoke to Stark about D.
Taylor and R. Carpenter, and did not say they would not
leave him alone is credited.
Turning to the reasons advanced by Respondent for dis-
charging R. Carpenter and D. Taylor, I first note that Re-
spondent’s argument in its posttrial brief to the effect that the
discharge of Larry Strunk on September 26 ‘‘establishes that
[the women] would have been terminated regardless of their
alleged protected, concerted activity’’ can be charitably de-
scribed as without merit. The coincidence of the three dis-
charges on the same day might more likely suggest they
were a device designed to stifle the rumor with which the
women had expressed concern.
Respondent argues in its posttrial brief that the discharges
were caused by insubordination and absence from the work
area. Clark Taylor said: ‘‘My decision to terminate them was
based on the fact that they were leaving their work areas,
they both became uncooperative with Bill Stark and unco-
operative with other employees in the office, and that’s ex-
actly why there were terminated.’’ At another point in his
testimony he states, ‘‘Diane Taylor, I told her the reason for
her’s was insubordination and being away from her work
area, being insubordinate to Bill Stark which I had reports
of that and that was her reason, and to Becky Carpenter it
was being away from her work area. She had also—in terms
of her work itself, had fallen off, and firstly, I pointed out
to her the letter as an example that she had typed for Vivian
which Vivian and Bill Stark both said it took her almost
three hours to do, and then she gave it to Vivian and told
her to finish it up herself which I considered really unco-
operative and that’s why I let Becky Carpenter go when I
told her.’’ At another point he said the decision to discharge
was made by Shackleford because the employees were leav-
ing the work areas and were insubordinate. Notwithstanding
the basic contention advanced by Respondent that insubor-
dination and absence from the work areas caused the dis-
charges, Respondent and its witnesses advert to other mat-
ters, notably the failure of D. Taylor to cause checks to be
ordered in April, the letter typed by R. Carpenter on Sep-
tember 22, and a complaint by Larry Strunk the two were
impeding his work. The advice to D. Taylor and R. Car-
penter during their exit interview that Strunk had so com-
plained has been found to be false.
With respect to the failure of D. Taylor to timely notify
Huddleston to order payroll checks in April, I credit Stark
that he reprimanded D. Taylor for this omission, but the writ-
ten reprimand he prepared for the file on April 3 concerning
the problem which arose on March 24 due to the lack of suf-
ficient checks does relate that ‘‘there was some question in
my mind as to whether proper safeguards were in place to
prevent this type of thing from happening. We are now im-
plementing safeguards . . . .’’ That there were no proper
safeguards in place at the time D. Taylor failed to cause the
checks to be ordered does not change the fact the reprimand
may have been warranted. D. Taylor avers this reprimand
was not in her personnel file when she reviewed it in July.
Mary Taylor, personnel secretary, denies that Diane Taylor
reviewed her file in July. Whether Diane Taylor reviewed
her file in July or whether Stark caused the reprimand to be
put in her personnel file need not be resolved. There is no
evidence the reprimand is of recent invention for purposes of
litigation, and I conclude it was prepared as Stark claims,
and reflects what he told Diane Taylor. I further conclude,
however, that the resurrection of a 6-month-old unrelated in-
cident to support a discharge for insubordination and exces-
sive absences from the work station raises some suspicion
concerning the bona fides of the reasons relied on. The same
is true of Respondent’s reference to the letter typed by R.
Carpenter on September 22. On that day R. Carpenter had
permission to leave at 4 p.m. to visit a dentist. At 3:30 p.m.,
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as D. Taylor was leaving, Vivian Cordell, a nonsupervisory
employee in the accounting department, gave R. Carpenter a
royalty letter to type. The letter did not have to be mailed
until the following Monday, but Cordell told R. Carpenter
she wanted it done that Friday. R. Carpenter typed it, proof-
read it with another employee, and gave it to Cordell at 4
p.m. Cordell and Mark Teague retyped it because the mar-
gins were incorrect, and dated it September 25, the following
Monday. Cordell does not recall the hour when she gave the
letter to R. Carpenter, but estimates it was between 2 and 3
p.m. Diane Taylor’s definite testimony that she saw Cordell
give the letter to R. Carpenter at 3:30 p.m., Diane Taylor’s
departure time, is convincing and credited. None of this testi-
mony supports Taylor’s contention at the exit interview that
R. Carpenter spent 2-1/2 hours on the letter.
With respect to absences from the workplace, Clark Taylor
testified that his August 15 instructions to Stark to restrict
the movements of D. Taylor and R. Carpenter grew out of
his personal observation that they were absent from the de-
partment on five or six occasions, and complaints from Bob
Zik, Fred Maggard, Jim Shackleford, Karen Hamblin, Ron
Yancey, Larry Lambdin, Vivian Cordell, Vickie Croley, and
Deborah Huddleston. Zik, Maggard, Shackleford, Lambdin,
and Croley did not testify and there is no evidence other than
Taylor’s bare claim that they did indeed complain about the
alleged peregrinations of D. Taylor and R. Carpenter.
Hamblin, one of the circulators of the rumor the two
women complained of, testified that D. Taylor’s visits to the
engineering department were quite often in 1989, at one
point several trips a day but later slacking off, but she does
not know where Talor went in the department or how long
she remained. Hamblin also recalls R. Carpenter was in the
engineering department several times in 1989, but they
‘‘weren’t that frequent, or that I noticed or I observed.’’ She
does not say whether she reported the visits of D. Taylor and
R. Carpenter to anyone.
Ronald Yancey, an underground surveyor, spends about 80
percent of his worktime away from the office. He does not
remember when he saw R. Carpenter or D. Taylor in Larry
Strunk’s office, but he saw each of them there several times.
He does not recall the date or month of these visits. He testi-
fied that he never reported these visits by D. Taylor or R.
Carpenter to anyone in management.
Vivian Cordell testified that when she was cross-training
R. Carpenter on truck tickets there were times Cordell would
have to leave for a few hours. Cordell does not know why.
She complained to Stark and Taylor that R. Carpenter did
not seem interested and was not available a lot. This was in
the spring about 2 or 3 months before R. Carpenter’s termi-
nation.
Deborah Huddleston testified that she complained to Clark
Taylor some time in the spring before July 4 that she did not
like Diane Taylor’s attitude and had a hard time getting in-
formation from D. Taylor. She makes no mention about D.
Taylor’s alleged absences from the accounting department.
Respondent also called personnel secretary Mary Taylor
and accountant Mark Teague to testify. Mary Taylor testified
that she often saw Diane Taylor and R. Carpenter go into
Larry Strunk’s office in engineering, but she said nothing to
management about this. Mark Teague relates that R. Car-
penter was often absent from her work area during the sum-
mer of 1989 and it would often take her two or three times
to type something correctly. He told Stark about this, but
Stark instructed him to give her a second chance. He has
also seen Diane Taylor away from the department, but he did
not complain about that because it caused him no problem.
Respondent has presented sufficient evidence to show in
general that D. Taylor and R. Carpenter may well have gone
on errands to the engineering department more than was ab-
solutely necessary to perform their assigned duties, and,
while there, stopped and talked to Strunk. The thrust of Re-
spondent’s argument is the reason for the excessive visits
was the opportunity to stop enroute and chat with Strunk. To
some degree the evidence Respondent relies on was not
known to Respondent at the time of discharge. Yancey,
Teague, and Mary Taylor did not report the visits of D. Tay-
lor and/or R. Carpenter to management. Hamblin and Hud-
dleston do not say whether they reported such incidents.
Cordell asserts that although she reported R. Carpenter’s ab-
sences from her cross-training sessions to both Stark and
Clark Taylor it was some 2 or 3 months before the dis-
charge. Evidence of this sort is not impressive, nor is Clark
Taylor’s vague testimony that he saw each of the two alleged
discriminatees were absent from their department at least five
or six times in the summer. There is no evidence touching
on the reasons for these absences.
Larry Strunk’s testimony that Croley and Hamblin visited
his office more often than anyone else, Croley the most
often, and Debbie Bishop was often in his office is
uncontroverted. Hamblin and Bishop work in the engineering
department, but no explanation was proffered as to why they
should often visit Strunk’s office. Croley worked in account-
ing and reasons for her to be in the engineering department
and Strunk’s office are also conspicuously absent. Here again
the failure to present testimony from the various management
officials who allegedly complained of the movements of D.
Taylor and R. Carpenter, and therefore should have more
precise recollections of exactly what did happen, casts con-
siderable doubt on the very general undetailed representa-
tions of Stark and Clark Taylor.
With respect to the proffer of excessive use of the tele-
phone as misconduct, R. Carpenter was the receptionist and
switchboard operator responsible for receiving and routing
calls coming in to Respondent’s offices on 16 trunk lines and
60 extensions. She was obviously occupied with phone calls
throughout the workday, and there is nothing more than gen-
eral assertions by Clark Taylor and Stark, not particularly re-
liable witnesses as I have previously noted, to back up the
charges of telephone misuse by either Ms. Taylor or R. Car-
penter. Both deny excessive use of the phone, and D. Taylor
credibly related, with no persuasive evidence to the contrary,
that she only received two or three personal calls between
August 15 and September 26, and that Croley would receive
as many as seven incoming personal calls a day. There is no
evidence Croley was chastised for phone misuse.
The claim of insubordination to Stark is equally vague.
Respondent’s posttrial brief, like the testimony of Stark and
Clark Taylor, says D. Taylor and R. Carpenter were unco-
operative and insubordinate to Stark but does not epressly
explain what this means. A careful reading of the testimony
of Clark Taylor and Stark and the ‘‘Performance Reviews’’
of the two ladies prepared by Stark on or about September
2 persuades me the claim of insubordination and lack of co-
operativeness probably refers to the alleged failure to abide
797GATLIFF COAL CO.
by the instructions to refrain from leaving the department and
from overuse of the telephone.
The events surrounding the preparation of the ‘‘Perform-
ance Reviews’’ on or about September 22 are most inter-
esting. In the second week of September, Stark prepared an-
nual evaluations on D. Taylor and R. Carpenter using the
preprinted ‘‘Employee Performance Evaluation’’ form. On D.
Taylor’s he wrote, ‘‘Diane has the capabilities of being an
excellent payroll clerk, she has well knowledge of the subject
matter.’’ For R. Carpenter’s he wrote, ‘‘Becky has the capa-
bilities of being a good receptionist and she has knowledge
of her job.’’ According to Stark’s uncontroverted testimony
on this topic, when he gave the forms to Clark Taylor the
following colloquy ensued:
Clark said, This don’t tell me anything. He said,
What do you mean they have the capabilities? I said,
Clark, they’ve been true blue, dedicated through their
last reports and up through the first three months of this
fiscal anniversary date here. And he said, Well, what
are you telling me now? I said, Well, I can’t give them
a good review, and he said, Why not? And I said, Well,
blah, blah, blah, and he said, Write it down.
Stark continues that he then decided there was not enough
room on the forms for what he was going to write because
‘‘I tried to go into specifics because I wanted to protect my-
self but yet I wanted to give Clark ample information that
he was asking for in detail.’’ For these reasons, he wrote the
evaluations in longhand on 8-1/2 by 11 stationary, three
pages for D. Taylor and two for R. Carpenter. They read as
follows:
DIANE TAYLOR
PERFORMANCE REVIEW
9–22–89
For the past four months Diane’s dedication to her
job has been limited to the routine, repetitive clerical
functions. Diane shows lack of initiative to assist others
in the accounting department or other departments. I
feel that the routine payroll function is somewhat less
than a 40 hr. week, particularly since Deborah has
taken the salaried employees and Alice compiles the
times for the surface employees. This should allow time
for Diane to maintain payroll related accounts, assist in
intercompany information projects requiring payroll in-
formation, and to perform other general clerical duties
(personnel dept., safety dept., cost accounting, Alice’s
productivity reports, Deborah’s salaried payroll, etc. all
require Diane’s payroll information.). However, I am
continuely receiving feed-back from those involved in
these projects that there is a great deal of reluctancy for
Diane to co-operate in supplying the information. It is
very common for Diane to express ‘‘I don’t see why
they need it’’ or that they could get the information
somewhere else themselves.
Filling the gaps between payroll tasks is a function
of self-supervision not easily monitored by anyone
other than Diane, herself. Not only do I feel that these
periods are not being utilized to the best interest of
Gatliff Coal Company, but I believe that these avail-
ability times are being disguised by frequent and
lengthy phone conversations, personal intercompany re-
lationships, and general slow down in productivity. The
phone calls and general slow down is evidenced by per-
sonal observations and complaints by co-workers. For
instance, on 9–22–89 I arrived at work at 8:00 am and
found Diane on the phone (Diane arrived at 7:00 am).
At 8:17 am, finding her still on the phone, I dialed the
extension of L. Strunk to find his line busy. When he
answered my call, Diane simultaneously hung up.
Deborah, Larry, Mark, Dee, & Vickie, all have wit-
nessed similar, although greater in length, whispering
conversations.
The personal intercompany relationships are evi-
denced by personal observation and complaints from
both within the department and outside the department,
including complaints from various company administra-
tors, supervisors, department heads, and coworkers. The
common expression heard upon inquiring why Diane
was away from her terminal was ‘‘Check L. Strunk’s
office or Teresa’s’’—more times than not, they were
correct.
I made an attempt to remedy the situation by advis-
ing Diane, the afternoon of August 15, 1989, not to
leave her work station or have anyone from another de-
partment enter her work station without notifying Clark
or myself. This was strongly re-emphasized by Clark
Taylor in the presence of myself and Becky on August
21, 1989. However, on both August 28th and 29th, L.
Strunk entered Diane’s work station with no notifica-
tion. Furthermore, on September 5, 1989, Deborah
Huddleston observed both Diane and Becky in the engi-
neering department talking to L. Strunk—again no noti-
fication. This was during the close of the month when
no time can be wasted.
I found it impossible to rely on Diane’s ability to
self-supervise and also recognized the impracticability
to use my time to monitor her every move. The experi-
ence one could gather in 10 years with the company
provided opportunity for advancement. However, Diane
shows no desire to expand on her duties and abilities
and shows an apathetic attitude toward her present tasks
and willingness to work with others.
Please see attached reprimand dated April 3, 1989.
BECKY CARPENTER
PERFORMANCE REVIEW
9–22–89
For several months, through the use of a contract la-
borer, Becky’s time has been made free in order to
cross-train and relieve staff for vacations. However, not
much progress was made past cross-training on payroll.
Although Becky was needed on accounts payable and
truck tickets it was with reluctancy that Vickie would
turn over a/p to Becky because of frequent errors due
to carelessness and Becky never did quite catch the
nack of truck tickets. Vivian and Sheila indicated that
Becky showed no interest in learning to post truck tick-
ets and even expressed that she didn’t feel that she
should have to since she was already back-up on pay-
roll and accounts payable.
798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 See NLRB v. Leslie Metal Arts Co., 509 F.2d 811, 814 (6th Cir. 1975),
enfg. 208 NLRB 323 (1974).
8 Elion Concrete, Inc., 299 NLRB 1 (1990), citing Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
Instead of becomming [sic] proficient in her cross-
training skills, she became preoccupied with lengthy
phone conversations, personal intercompany relation-
ships, and general work slow down. This was evi-
denced by personal observation and complaints from
both within the department and outside the department,
including complaints from various company administra-
tors, supervisors, department heads, and coworkers. The
common expression heard when I asked where Becky
was when missed from her work station was ‘‘Check
L. Strunk’s office or Teresa’s office’’—more times than
not, they were correct.
I made an attempt to remedy the situation by advis-
ing Becky on the afternoon of August 15, 1989, not to
leave her work station or have anyone from another de-
partment enter her work station without notifying Clark
or myself. This was strongly re-emphasized by Clark
Taylor in the presence of myself and Diane on August
21, 1989. However, on August 28th, 1989 Becky was
observed in Jim Faulkner’s office (to pick up an appli-
cation) then in Larry Strunk’s office, with no notifica-
tion. Furthermore, Becky has been observed on a reg-
ular basis in Teresa’s office—again no notification.
Today, Sept. 22, 1989, Becky spent all afternoon in Te-
resa’s office typing a letter for Vivian. Because he
‘‘wanted it done right and couldn’t wait on corrections,
Mark re-typed it himself in approximately 15 min. (see
attached).
Becky has lost interest in her job and has developed
an apathetic attitude toward helping others. I am pres-
ently investigating missing phone bill records and
phone call printouts which were Becky’s responsibility
to file.
The most interesting, and I believe significant, aspect of
these ‘‘Performance Reviews’’ is the reason for their prepa-
ration. It is obvious from Stark’s initial reluctance to severely
criticize the performance of D. Taylor and R. Carpenter that
he was not seeking their discharge. Clark Taylor told both
the ladies on discharge that it was based on reports from
Stark, yet it was Clark Taylor who insisted that Stark issue
the adverse evaluations which, despite the authority exerted
by Clark Taylor, do not recommend the two be dismissed.
This is a circular transaction. Clark Taylor insisted on ad-
verse evaluations by Stark, and then told the two women it
was Stark’s input that caused their separation. I am per-
suaded it was Clark Talor, not William Stark, who wanted
to fire D. Taylor and R. Carpenter, and that the insistence
on the adverse evaluations was designed to provide a plau-
sible basis for those discharges. Clark Taylor’s claim the de-
cision was Shackleford’s is not credited in the absence of
Shackleford’s testimony to the same effect. As previously
noted, the absence of that testimony warrants an inference
Shackleford would not furnish evidence favorable to Re-
spondent if called. It is false to claim the dismissals were at
Stark’s instance. This whole sequence of Clark Taylor’s in-
sistence on the review he finally got indicates to me that he
was attempting to build justification for the discharges.
What ultimate conclusion concerning the legitimacy of the
discharges can be drawn from the conglomerate of facts, in-
ferences, and preliminary conclusions reached to this point?
The answer depends on whether concerted action is present,
whether that action is protected if it is in fact concerted,
whether the General Counsel has set forth a prima facie case
the terminations were precipitated by protected concerted ac-
tivity, and, if General Counsel has such a prima facie case,
would Respondent have taken the same action in the absence
of the protected activity? The first step in the process of de-
termining these issues is measuring the facts found against
the guide set forth in Meyers Industries, 268 NLRB 493, 497
(1984) (Meyers I), in the following terms:
In general, to find an employee’s activity to be ‘‘con-
certed,’’ we shall require that it be engaged in with or
on the authority of other employees, and not solely by
and on behalf of the employee himself. Once the activ-
ity is found to be concerted, an 8(a)(1) violation will
be found if, in addition, the employer knew of the con-
certed nature of the employee’s activity, the concerted
activity was protected by the Act, and the adverse em-
ployment action at issue (e.g., discharge) was motivated
by the employee’s protected concerted activity. [Foot-
notes omitted.]
and as recited in Meyers Industries, 281 NLRB 882, 887
(1986) (Meyers II),
We reiterate, our definition of concerted activity in
Meyers I encompasses those circumstances where indi-
vidual employees seek to initiate or to induce or to pre-
pare for group action, as well as individual employees
bringing truly group complaints to the attention of man-
agement.
Stark’s remarks to R. Carpenter and D. Taylor at the Au-
gust 15 meeting regarding Clark Taylor’s desire to discharge
them due to the rumor linking them to Larry Strunk illus-
trates that as far as Respondent was concerned there was one
rumor involving Strunk’s alleged relationship with both la-
dies rather than, as Respondent argues, two separate unre-
lated rumors. In any event, I agree with General Counsel that
R. Carpenter and D. Taylor joined together in concertedly
protesting to Shackleford and Clark Taylor what they consid-
ered, and I conclude was, a malicious rumor connecting them
and Strunk in an adulterous relationship. This concerted pro-
test was protected by the Act because it concerned harass-
ment by fellow employees which created a difficult condition
of employment for D. Taylor and R. Carpenter.7 The circula-
tion of malicious rumors of adultery certainly constitutes
psychological harassment of the subjects of the rumor. The
evidence thus shows protected concerted activity known by
Respondent to be concerted. That Respondent was concerned
about the rumors and the protests raised by R. Carpenter and
D. Taylor concerning them is evident from the various state-
ments and conduct of Stark, Clark Taylor, and Shackleford
relating to the rumors. There is no direct evidence Respond-
ent discharged R. Carpenter and D. Taylor because the
concertedly complained of the circulation of the rumor. It is
well settled however that unlawful motivation may be proved
by circumstantial evidence warranting an inference of such
motivation.8 Here Respondent’s reasons for discharge and the
799GATLIFF COAL CO.
9 Wright Line, 251 NLRB 1083 (1980); NLRB v. Transportation Manage-
ment Corp., 46 U.S. 393 (1983).
10 Under New Horizons, interest is computed at the ‘‘short-term Federal
rate’’ for the underpayment of taxes as set out in the 1986 amendment to 26
U.S.C. Sec. 6621.
11 Elion Concrete, Inc., supra.
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
13 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
evidence proffered in support thereof will not survive close
scrutiny. Clark Taylor and William Stark deal in circumlocu-
tion and generalities and are not convincing witnesses. Other
members of management whose testimony would have been
important, perhaps crucial, on several points were not called
by Respondent, and the failure of these persons to testify
raises the inference they would not have given testimony fa-
vorable to Respondent. Clark Taylor firmly posits insubor-
dination and leaving work areas as the reasons for the dis-
charges, but refers to other matters remote, insignificant, or
false as supporting reasons. Clark Taylor directs William
Stark to write unfavorable evaluations on the two women
only 4 days before their discharge, and then tells them his
action was based on Stark’s recommendation even though
Stark attempted to mollify Clark Taylor with a harmless
evaluation of the two and had no intention of causing their
discharge. The employees called by Respondent to support
its cause give little assistance to Respondent, and some even
deny informing Respondent’s agents of any of the alleged
absences from the work place Respondent relies on. There is
unrebutted evidence that other employees engaged in conduct
like that proffered as reason for the discharges, but there is
no evidence of adverse action against these employees who
are reported to have been guilty to a greater degree of the
same alleged transgressions. After considering all these fac-
tors, I have concluded an inference of an unlawful motive is
warranted and Respondent has in fact established no con-
vincing lawful reasons for terminating the two employees
who were evaluated as excellent the year before. Respondent
has, in effect, offered unconvincing excuses rather than valid
reasons.
Accordingly, I conclude the evidence shows the concerted
complaints by D. Taylor and R. Carpenter concerning the ru-
mors were protected, were a motivating factor in Respond-
ent’s decision to discharge them, and General Counsel has
made out a prima facie case the Act has been violated. The
burden rests on Respondent to prove D. Taylor and R. Car-
penter would have been discharged in the absence of any
protected activity. Respondent has not met that burden, and
General Counsel has therefore proved by a preponderance of
the credible evidence D. Taylor and R. Carpenter were dis-
charged in violation of Section 8(a)(1) of the Act.9
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by dis-
charging Rebecca L. Carpenter and Diane Taylor on Sep-
tember 26, 1989, because they engaged in protected con-
certed activity.
3. The unfair labor practices found affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
In addition to the usual notice posting and cease-and-desist
requirements, my recommended order will require Respond-
ent to offer Rebecca Carpenter and Diane Taylor immediated
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of earn-
ings suffered as a result of the discrimination against them.
Backpay shall be calculated and interest computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), and New Horizons for the Retarded, 283 NLRB 1173
(1987).10 I shall further recommend that Respondent be re-
quired to remove from its files any reference to the dis-
charges of Rebecca Carpenter and Diane Taylor, and notify
them in writing that this has been done and that the dis-
charges will not be used against them in any way.11
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Gatliff Coal Company, Nevisdale, Ken-
tucky, if officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees because they engage in protected concerted activity.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Rebecca Carpenter and Diane Taylor immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the rem-
edy section of this decision.
(b) Remove from its files any reference to the discharges
of Rebecca Carpenter and Diane Taylor on September 26,
1989, and notify them in writing that this has been done and
that the discharges will not be used against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its place of business and current construction
projects copies of the attached notice marked ‘‘Appendix.’’13
Copies of the notice, on forms provided by the Regional Di-
rector for Region 9, after being signed by the Respondent’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
800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be taken by the Respondent 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 Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we have
violated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain ollectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
any employees because they engage in protected concerted
activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Rebecca Carpenter and Diane Taylor im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings, plus in-
terest.
WE WILL remove from our files any reference to the dis-
charge of Rebecca Carpenter and Diane Taylor on September
26, 1989, and notify them in writing that this has been done
and that the discharge will not be used against them in any
way.
GATLIFF COAL COMPANY