Great Lakes Coal Co.

National Labor Relations Board - Board Decisions

Feb 28, 1984

268 N.L.R.B. 1207 (N.L.R.B. 1984)

GREAT LAKES COAL CO.
Great Lakes Coal Company and United Mine Work-
ers of America, District 11, affiliated with
United Mine Workers of America. Cases 25-
CA-14038 and 25-CA-14287
28 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 1 April 1983' Administrative Law Judge
James J. O'Meara Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed limited cross-
exceptions and an answering brief to the Respond-
ent's exceptions.
The National Labor Relations Board has delegat-
ed 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 briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions. 3
The judge's decision is erroneously dated I April 1982 rather than I
April 1983. We hereby correct this inadvertent error.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence 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 examined the record and find no basis for reversing
the findings.
Garyl Griffith's given name frequently appears in the judge's decision
as "Daryl." We hereby correct the inadvertent error.
I In the absence of exceptions, we adopt, pro forms, the judge's con-
clusion that the Respondent violated Sec. 8(aXl) of the Act by suggest-
ing to employees that it would be futile for the Union to attempt to orga-
nize its facility.
In support of his conclusion that the Respondent violated Sec. 8(aXS)
and (1) of the Act by failing to bargain in good faith with the Union, the
judge stated in sec. VIII,A, par. 4, of his decision that the Respondent
attended only two scheduled bargaining sessions during the 8-month
period following its recognition of the Union. Review of the record,
however, demonstrates that the Respondent's negotiator, Andrew Con-
taldi, attended three bargaining sessions-on 6 January, 27 April, and 20
May 1981-and its owner, William Burke, attended two others-on 2 De-
cember 1980 and 12 July 1981. Despite the discrepancy, the Respondent's
conduct evidenced an intent to delay and frustrate the negotiating proc-
ess, and we agree with the judge's conclusion that the Respondent failed
to bargain in good faith.
The judge correctly found that the Respondent violated Sec. 8(aX5) of
the Act by unilaterally providing unit employees with benefits, including
pay raises, Christmas bonuses, and luncheon and shower facilities, while
it engaged in negotiations with the Union concerning these matters. He
stated, however, in sec. VII,B, par. 3, of his decision that this conduct
"cannot be said to have interfered with the employees' rights under Sec-
tion 7 since the Union obtained the exclusive representation rights of
these employees on November 4, 1981." We disagree with this statement
because we find that the Respondent's conduct interfered with the em-
ployees' Sec. 7 right "to bargain collectively through representatives of
their own choosing," and derivatively violated Sec. 8(aXl) of the Act.
In concluding that the Respondent violated Sec. 8(aX3) and (1) of the
Act by discharging Garyl Griffith, the judge stated in sec. VIII,B, par. 4,
of his decision that the Respondent knew that Griffith was prounion
based on Griffith's "needling" of the Respondent's mine superintendent,
Arthur Young, to the effect that working conditions at the mine would
improve if the employees were represented by a union. We note that an
268 NLRB No. 167
CONCLUSIONS OF LAW
1. Great Lakes Coal Company is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. United Mine Workers of America, District 11,
affiliated with United Mine Workers of America, is
a labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees of
the Respondent employed at its Linton, Indiana fa-
cility; BUT EXCLUDING all office clerical em-
ployees, all guards and all supervisors as defined in
the Act, and all other employees, constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.4
4. Since 4 November 1981, and at all times there-
after, the Union has been and is now the exclusive
representative of all the employees in the aforesaid
appropriate unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the
Act.
5. By threatening employees that it would close
its facility if the Union were to represent them for
the purpose of collective bargaining, by informing
employees that it would be futile for the Union to
attempt to organize them, and by promising to pro-
vide its employees with an insurance program and
a coal production bonus, and awarding employees
a coal production bonus, in order to induce them
not to support the Union, the Respondent has inter-
fered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act in violation of Section 8(a)(1) of
the Act.
6. By discharging employee Garyl Griffith for
joining, supporting, or assisting the Union, and en-
gaging in other concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection, the Respondent has engaged in unfair labor
additional source of such knowledge was employee Linden Moss' state-
ment to Foreman Chuck Dillon during September or October 1981 that
Griffith wanted a union very badly and was one of its biggest supporters.
The judge's Conclusions of Law fadi to state that the Respondent vio-
lated Sec. 8(aXl) of the Act by threatening to close its plant if the Union
were to represent its employees and by informing employees that it
would be futile for the Union to organize its facility, and also fail to in-
clude the Respondent's derivative violations of Sec. 8(aXI). In order to
correct these omissions and several other inadvertent errors, we shall
issue new Conclusions of Law.
The General Counsel excepted to the judge's failure to provide in his
recommended Order a remedy for the Respondent's violations of Sec.
8(aXl) of the Act, as follows: threatening to close the Linton mine if the
employees selected a union to represent them; telling employees it would
be futile for the Union to attempt to organize them; and promising and
granting benefits to employees to induce them not to support the Union.
We find merit in this exception. Accordingly, to correct these and other
inadvertent errors, we shall issue an order in lieu of that recommended
by the judge.
The unit description, which the Respondent does not contest, appears
as in the General Counsel's complaint.
1207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices in violation of Section 8(a)(3) and (1) of
the Act.
7. By refusing to bargain in good faith with the
Union as the exclusive representative of the em-
ployees in the aforesaid appropriate unit, and by
unilaterally providing its employees with a lunch
facility, a washhouse, a Christmas bonus, and pay
raises, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
8. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Great Lakes Coal Company,
Linton, Indiana, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with United
Mine Workers of America, District 11, affiliated
with United Mine Workers of America, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees of
the Respondent employed at its Linton, Indi-
ana, facility; BUT EXCLUDING all office
clerical employees, all guards and all supervi-
sors as defined in the Act, and all other em-
ployees.
(b) Without notice to or bargaining with the
Union as the exclusive bargaining representative of
the employees in the unit providing the employees
with a lunch facility, a washhouse, a Christmas
bonus, and pay raises, and implementing an internal
job bidding procedure and a new safety training
program, providing that nothing herein shall re-
quire Respondent to rescind any benefit that it has
previously granted.
(c) Discharging or otherwise discriminating
against any employee for supporting United Mine
Workers of America, District 11, affiliated with
United Mine Workers of America, or any other
union.
(d) Threatening to close its facility if the Union
were to become its employees' collective-bargain-
ing representative.
(e) Promising to provide its employees with an
insurance program and a coal production bonus,
and awarding employees a coal production bonus,
in order to induce them not to support the Union,
providing that nothing herein shall require the Re-
spondent to rescind the coal production bonus.
(f) Informing its employees it would be futile for
the Union to organize them.
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the unit
concerning terms and conditions of employment
and, if an understanding is reached, embody the
understanding in a signed agreement.
(b) Offer Garyl Griffith immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or
privileges previously enjoyed.
(c) Make Garyl Griffith whole for any loss of
earnings and other benefits suffered due to the dis-
crimination against him by paying him a sum equal
to what he would have earned absent such discrim-
ination, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest thereon to be computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651
(1977). 5
(d) Remove from its files any reference to the
unlawful discharge and notify the employee in
writing that this has been done and that the dis-
charge will not be used against him in any way.
(e) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, 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.
(f) Post at its Linton, Indiana facility copies of
the attached notice marked "Appendix." 6 Copies
of the notice, on forms provided by the Regional
Director for Region 25, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
" See generally Isis Plumbing Co., 138 NLRB 716 (1962).
6 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the 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."
1208
GREAT LAKES COAL CO.
(g) 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United
Mine Workers of America, District 11, affiliated
with United Mine Workers of America, as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit:
All production and maintenance employees
employed by us at our Linton, Indiana, facili-
ty; BUT EXCLUDING all office clerical employ-
ees, all guards and all supervisors as defined in
the Act, and all other employees.
WE WILL NOT without notice to or bargaining
with the Union as the exclusive bargaining repre-
sentative of our employees in the unit provide our
employees with a lunch facility, a washhouse, a
Christmas bonus, and pay raises, and implement an
internal job bidding procedure and a new safety
training program; however, we are not required to
rescind any benefit that we have previously grant-
ed.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting United Mine
Workers of America, District 11, affiliated with
United Mine Workers of America.
WE WILL NOT threaten to close our facility if the
Union were to become our employees' collective-
bargaining representative.
WE WILL NOT promise to provide our employees
with an insurance program and a coal production
bonus, and award employees a coal production
bonus, in order to induce them not to support the
Union, providing that nothing herein shall require
us to rescind the coal production bonus.
WE WILL NOT inform our employees it would be
futile for the Union to organize them.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment.
WE WILL offer Garyl Griffith immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL make Garyl Griffith whole for any
loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus in-
terest.
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way.
GREAT LAKES COAL COMPANY
DECISION
STATEMENT OF THE CASE
JAMES J. O'MEARA JR., Administrative Law Judge:
This matter arises as a result of a consolidation of two
amended complaints based upon specific charges filed by
one Garyl L. Griffith and the United Mine Workers of
America, District 11, affiliated with United Mine Work-
ers of America, respectively. The amended complaint in
Case 25-CA-14038 alleges that the Respondent threat-
ened to close its facility because its employees joined and
assisted the Union and that the Respondent promised
benefits to its employees in order to induce them to re-
frain from joining and assisting the Union; granted bene-
fits in order to induce its employees to refrain from join-
ing and assisting the Union; told its employees that union
agents could be bought; threatened that it would be
futile for them to select a union to represent them; and
discharged its employee Garyl L. Griffith because of his
engagement in concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
all in violation of Section 8(a)(1) and (3) of the Act.
In Case 25-CA-14287 the amended complaint alleges
that the Respondent designated the Union as the exclu-
sive bargaining representative of the Respondent's em-
ployees and that such Union is, and at all times material
herein was, the exclusive representative of the employees
for such purposes, and, further, that the Respondent has
failed and refused to meet and bargain with the Union;
has granted improvements in working conditions, such as
the establishment of a lunchroom facility, the institution
of a safety program, and the providing of a washhouse
facility; has granted bonuses and pay increases; and has
instituted a policy of internal job offers to employees
prior to the hiring of new employees for such jobs and
that such conduct comprises a failure and refusal to bar-
gain collectively in good faith with the union in violation
of Section 8(aXl) and (5) and Section 8(d) of the Act.
By its answer the Respondent admits the identity and
jurisdictional allegations of both complaints.' The Re-
' The Respondent's answer to the complaint in Case 25-CA-14038
denies, inter alia, the allegation that it is an Indiana corporation. Howev-
er, in its answer to the complaint in Case 25-CA-14287 it admits such
identity. Accordingly, it shall be deemed that the allegations as to the
corporate status of the Respondent have been admitted.
1209
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent also denies that it has violated the Act and af-
firmatively alleges that the discriminatee, Garyl L. Grif-
fith, was discharged because of poor job performance
and denies that it had any knowledge of his union activi-
ty until subsequent to Griffith's discharge and thus his
discharge was not because of his union activities. The
Respondent also counterclaims for reimbursement for at-
torney fees, legal fees, and other expenses. 2
The cases were heard in Terre Haute, Indiana, on July
27-29, 1982. The parties waived oral argument and have
filed briefs which have been received and considered.
On the evidence of record, the demeanor of the wit-
nesses, and the briefs of counsel, I make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The Respondent, Great Lakes Coal Company, is an Il-
linois corporation duly authorized to do business in the
State of Indiana. It is, and has been, engaged in the busi-
ness of mining and selling coal since 1978 and maintains
an office and place of business at Linton, Indiana, where
it engages in the mining, processing, sale, and distribu-
tion of coal. During the past year the Respondent, in the
course and conduct of its business, has caused coal to be
mined, processed, and shipped from its facility, which
commodity is valued in excess of $50,000, directly to
points outside the State of Indiana and in the course of
such conduct of its business it has purchased and re-
ceived at its facility products and materials valued in
excess of $50,000 directly from points located outside the
State of Indiana.
The Respondent admits in its pleadings and I find that
the Respondent is, and at all times material herein was,
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
I further find that it will effectuate the policies of the
Act to assert jurisdiction in this case.
II. THE LABOR ORGANIZATION
United Mine Workers of America, District 11, affili-
ated with United Mine Workers of America, is an orga-
nization in which employees participate which deals with
employers concerning grievances, labor disputes, wages,
rates of pay, hours of employment, and conditions of
work, and at all times material herein has been a labor
organization within the meaning of Section 2(5) of the
Act.
III. PREFATORY FACTS
A. The Linton Facility
The Respondent has been engaged in the business of
mining and selling coal since 1978. It has mined coal in
several counties of Indiana. During this period, in July
1980, it opened a pit in Green County near Linton, Indi-
2 The Respondent's counterclaim for attorney fees, legal fees, and
other expenses is subject to the provisions of the Equal Access to Justice
Act (5 U.S.C, § 504) and Sec. 102.143, et seq., of the Board's Rules and
Regulations and, therefore, is premature and is not considered in this
opinion.
ana (hereinafter called the Linton facility). At the Linton
facility the Company tested for the nature and quality of
the coal at that location. In September 1980, the compa-
ny president negotiated for the construction of a wash
plant to be used at and for the Linton facility. Construc-
tion of the wash plant began in February 1981, and was
completed in July of that year. Test coal was processed
through the plant beginning on August 15, 1981. On Oc-
tober 20, 1981, the Company accepted the wash plant
from the contractor and has produced marketable coal
from and after that date.
B. The Union Entry
The president of District 11 of the United Mine Work-
ers of America, Larry Reynolds, contacted William
Burke, the Respondent's president, in August 1981, and
requested a meeting to acquire the Union's representation
of the employees of the Respondent at the Linton facili-
ty. On September 9, 1981, Reynolds and four of his asso-
ciates visited the mine and talked with Burke and the
mine superintendent, Arthur Young. On October 6, 1981,
Reynolds contacted Burke by telephone, at which time
Burke refused to recognize the Union as the exclusive
bargaining agent of the Respondent's employees. On Oc-
tober 25, 1981, the Union held its first meeting with the
employees of the Respondent at the Linton facility.
Eleven employees were present at the meeting and union
authorization cards were signed by a majority of the Re-
spondent's employees.
On October 26, 1981, Reynolds was advised by an em-
ployee, Daryl Griffith, that he had been fired. On that
day the Union filed a petition with the National Labor
Relations Board for certification as the exclusive bargain-
ing representative of the employees at the Linton facility.
On November 2, 1981, Reynolds held another meeting
with the employees of the Respondent.
On November 4, 1981, Reynolds met with Burke and
Andrew Contaldi, who was the Company's bargaining
representative, and it was agreed in an initialed memo
that the Union would be the exclusive bargaining repre-
sentative of the employees of the Respondent. On No-
vember 5, 1981, Reynolds took steps to withdraw the pe-
tition for certification previously filed by the Union. The
parties, as a result of the November 4 agreement for rep-
resentation, arranged for negotiating sessions pursuant to
such agreement and the negotiations have not, as of the
date of this hearing, resulted in a contract.
IV. THE ALLEGED 8(A)(5) VIOLATIONS
On November 4, the day the Respondent agreed to the
representation of its employees by the Union, Reynolds,
on behalf of the Union, met with Burke and the Re-
spondent's representative, Andrew Contaldi. They dis-
cussed the Union's national agreement and its compo-
nents, particularly the pension fund. Burke told Reynolds
that the Company was small and could not afford the na-
tional contract making reference to the pension fund.
Burke then presented Reynolds with a proposed contract
which consisted of two pages. Reynolds told them that
the contract was not the typical one he usually negotiat-
ed in that it lacked details. However, he indicated that
1210
GREAT LAKES COAL CO.
he was willing to agree to the first two paragraphs,
which called for the recognition of the Union as the ex-
clusive bargaining representative of the Respondent's
employees. Reynolds cut off the first two paragraphs and
the parties initialed and dated the same. Burke then asked
Reynolds to withdraw his representation petition which
he had filed previous to the November 4 meeting which
he agreed to do. Burke then told Reynolds that Contaldi
would be his representative for the purposes of negotiat-
ing a contract and Contaldi would be the person to deal
with in that regard.
Reynolds and an employee bargaining committee pre-
pared its contract proposals and Reynolds wrote Burke a
letter on November 25, proposing dates on which the
Union could present its proposals. Along with the letter
was a document formalizing the parties' recognition
agreement of November 4, 1981. On November 30,
Reynolds called Contaldi to inform him that the Union's
proposals had been prepared and they wanted to present
them to him so he could have the opportunity to review
them. Contaldi said he could not meet personally so
Reynolds asked if Burke could accept the proposals after
which dates could be set for negotiations. It was agreed
that Burke would accept the proposals and Contaldi
would receive copies of them.
A meeting was held on December 2, at which time the
union bargaining committee presented Burke with its
proposals. Reynolds also asked Burke to sign the formal-
ized recognition agreement, but he refused. On Decem-
ber 7, Reynolds called Contaldi in regard to future bar-
gaining dates and to ascertain if he had received the
Union's proposals. Reynolds suggested December 15, 16,
and 17 as dates for meetings and Contaldi said he would
get back to him later on in the week as to his availability
at that time. On December 10, he called Reynolds and
said he did not think he could make it but did not give a
reason, and stated he would call Reynolds the following
Monday to let him know if he could make December 15,
16, and 17. However, he did not call and the parties did
not meet. In the December 10 conversation, Contaldi did
firmly commit to meetings on January 5 and 6, 1982. On
December 29 and 31, Reynolds called Contaldi to con-
firm the same, but he was unable to reach him. He called
Contaldi again on January 4, and Contaldi said he did
not think he could make those dates because he was
"fogged" in at Los Angeles. After Reynolds reminded
him of his earlier commitment to those dates and his ear-
lier cancellations of meetings, Contaldi agreed to come in
on January 6 and 7, 1982.
Contaldi did meet with the Union at the Terre Haute
Holiday Inn, the established meeting place, on January 6,
but upon arrival immediately canceled the January 7
meeting because of alleged business back in Los Angeles.
Contaldi did not have a copy of the proposals so he was
given one and an opportunity to briefly go through it.
The Union discussed some of its substantive proposals
such as vacations, subcontracting, safety, training, job
bidding, and wages, and engaged in extensive discussion
on the Union's proposed pension fund. Contaldi alleged
that he could not effectively discuss these issues inas-
much as he did not have any information as to what the
Company was presently doing in these areas and indicat-
ed on each subject that he would have to consult with
Burke and get back with the Union. Reynolds then took
a recess and met with the employee bargaining commit-
tee. He told them that he did not think they were
making any progress by this method of discussing their
proposals without any suggestions from the Company
and that they should get proposals from the Company in
response to their proposals and go from there. Reynolds
told Contaldi that he wanted a seniority list and the
Company's contract proposals. Contaldi told Reynolds
he would have the seniority list by January 13, and the
parties set meetings for January 19, 20, and 21. The
meeting lasted for some 2-1/2 to 3 hours.
When Reynolds did not receive the seniority list by
January 13, he called Contaldi the next day but was
unable to reach him. On January 15, Contaldi called
Reynolds saying that he did not have the seniority list or
the Company's proposals because the Company's secre-
tary was sick. On January 18, Contaldi called and with-
out any explanation stated he could not meet on January
19, and canceled the meeting. Reynolds protested saying
it was not his understanding that the meeting was can-
celed and further Contaldi had made a commitment.
Contaldi then countered that the proposals had not been
prepared because of the secretary's continued illness, but
he could meet on January 20. Reynolds then told him
that he could at least come to the meeting and state his
position on the issues since he should know what his pro-
posals would be. The conversation ended with Contaldi
agreeing to get back with Reynolds which he did not.
Reynolds called Contaldi on January 19, in view of his
statement that he could meet on January 20, and talked
to his secretary, who indicated that Contaldi was out of
town. Hearing this Reynolds assumed Contaldi would be
at the January 20 meeting as he promised and thus made
arrangements at the local Holiday Inn for the January 20
meeting set for 6:30 p.m. The union negotiating team
was present at the Holiday Inn at 6:30 p.m. on January
20; however, Contaldi did not appear. Reynolds then
called Burke in order to find out what had happened to
Contaldi, but was unable to reach him though Reynolds
knew he was registered as a guest in the hotel. Reynolds
talked to Burke the next day and related to him the
problems he was having reaching Contaldi and having
meetings. Burke said he was unaware of any such prob-
lems but, in any event, he would contact Contaldi and
have him contact Reynolds. Contaldi called Reynolds on
or about January 22, and Contaldi promised Reynolds
that his problems had been resolved and he was now
able to negotiate. They set meetings for January 26, 27,
and 28. On January 26, when Reynolds' secretary at-
tempted to confirm the above-agreed upon dates, she
was told that Contaldi was not coming. After failing to
reach Contaldi on January 26 and 27, on January 28
Reynolds sent Burke and Contaldi a telegram indicating
that it appeared that the Company was engaged in bad-
faith bargaining as reflected by Contaldi's failure to
return phone calls or meet with the Union and further
that the Union would if necessary file charges with the
National Labor Relations Board.
1211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 2, Contaldi called Reynolds and told him
there was no need to go to the Board because they could
work it out. He went on to say that he wanted to talk to
Burke and would get back to Reynolds by noon Friday,
February 5.
On February 5. Reynolds sent two of his organizers to
the Board Office to file the charges in the event he did
not hear from Contaldi. Contaldi did call in the evening
and apologized for his past transgressions and agreed to
meet on February 16, 17, and 18. Contaldi also promised
to get Reynolds the Company's contract proposals and
the previously promised seniority list. On February 11,
1982, Reynolds finally received the seniority list along
with a handwritten message from Contaldi saying "see
you next week." On February 15, when Reynolds called
Contaldi to confirm the February 16, 17, and 18 dates,
Contaldi again canceled the meetings because this time
he allegedly had the flu. Reynolds became upset and
Contaldi said Burke would meet with the Union in his
stead. Reynolds then made arrangements for the meeting
at the designated place for 6:30 or 7:30 p.m. The Union's
committee was present for the meeting; however, Burke
did not show up, even though the Union waited some 2
to 2-1/2 hours. Reynolds then tried to contact both Con-
taldi and Burke but had no success in doing so. The next
day, February 18, Reynolds filed the instant charge.
There was no contact with the Company with respect
to negotiations for the remainder of February 1982, nor
in March. On or about April 12, after almost 2 months of
no contact, Contaldi called Reynolds. He told Reynolds
that the hearing was rapidly approaching and he wanted
to come in and get the issues resolved. He suggested that
they meet on April 20. Reynolds agreed to do so but
cautioned Contaldi that he did not want any of the past
conduct. On the same day, Contaldi called and said he
would not be in but would be in on April 27.
Contaldi did come in on April 27, and met with Rey-
nolds that morning. Reynolds again told Contaldi that he
did not believe that he was sincere about negotiating a
contract, but was merely "stringing" him along. Contaldi
at this time presented Reynolds with the Company's con-
tract proposals. The proposals were essentially the same
ones presented to the Union at the first meeting on No-
vember 4, 1981. Reynolds, who had another meeting
scheduled, told Contaldi he would be back later that
evening to talk to Contaldi about the contract proposals.
Reynolds returned to the Holiday Inn later that evening;
however, in 4 hours he spent about 5 minutes with Con-
taldi, who was busy making and returning phone calls.
Contaldi told him he would get back to him later. Thus,
there was no discussion of the Company's "new" con-
tract proposals.
Sometime apparently in early May the Respondent re-
quested another postponement of the hearing from June
I to 28. However, the Acting Regional Director in a
letter dated May 14 denied the request and instead
moved the hearing date to May 24. Contaldi called
Reynolds on May 14, and indicated that he wanted to
come in and negotiate before the hearing. On May 17,
Contaldi called Reynolds and the dates of May 20 and 21
were confirmed. The parties did meet on May 20, and,
although subjects such as wages, the pension fund, holi-
days, vacations, etc., were addressed, Contaldi's response
to most of these issues was that he would get back to the
Union on the proposals. At the end of the meeting,
which lasted about 2 hours, Contaldi told Reynolds he
would get the Company's proposals to Reynolds and
would call him on June 2. The parties did not meet as
planned on May 21 because Contaldi had to leave town.
Contaldi did not call Reynolds on June 2 as promised,
but did reach him on June 3. He told Reynolds that he
would get the Company's proposal to him in a few days.
After failing to reach Contaldi on June 9, Reynolds did
"catch" him on June 10. Contaldi said he had been talk-
ing with Burke and he would get some proposals togeth-
er and get with Reynolds and hoped to have the con-
tract wrapped up by June 22. He went on to say he
would contact Reynolds the following week. The hear-
ing had been rescheduled from May 24 to July 27 on
June 9, 1982.
Contaldi did not call the next week and, on June 24,
Reynolds called Contaldi but could not reach him. On
June 25, Contaldi told Reynolds he wanted to come to
Terre Haute in July and further he would have the Com-
pany's proposals to Reynolds in a few days. Contaldi
called again on July 6, and indicated that he wanted to
come in on Monday, July 12, and that he was mailing
the Company's proposals that day. Reynolds received
the proposals the morning of the July 12 meeting. The
Union again made arrangements at the hotel for the
meeting scheduled to begin at 6:30 p.m. While waiting
for Contaldi, Reynolds saw Burke, who maintains a
room at the hotel, and Burke asked Reynolds what he
was doing there. Reynolds told him he was waiting for
Contaldi. Burke indicated that he had information that
Contaldi was not coming because he normally called him
before he came to Terre Haute and had apparently not
called Burke. Burke then told Reynolds that he would
come down and negotiate with them. However, Burke
got down to the meeting room around 8 p.m. At the
start of the meeting Reynolds gave Burke a copy of the
proposals he had received from Contaldi and commented
that he felt they were incomplete in that some of the ar-
ticles were supposed to have contained attachments and
they did not. Reynolds asked about items such as wages,
a health and retirement plan, the scope of the agreement,
job bidding, and others. Burke indicated that he saw no
problem with the Company's proposals as they were and
was ready to sign them as the contract. This meeting
lasted 30 minutes. Reynolds thereafter did talk with Con-
taldi on or about July 16, 1982. In that phone conversa-
tion Reynolds informed him of the proposals he felt were
incomplete and said that he needed more detailed ones
on those issues. At the time of this hearing nothing had
been resolved as to the incomplete proposals nor had the
Union received any additional proposals.
In November 1981, after the Respondent had recog-
nized the Union and was preparing or was negotiating a
collective-bargaining contract, the Respondent unilateral-
ly put into effect several beneficial changes which were
within the perimeters of the subject matter being negoti-
ated with the Union. In mid-November the Company
provided its employees a lunch facility comprised of a
1212
GREAT LAKES COAL CO.
trailer with a table and a heater. There had been no such
facility before the trailer and the employees ate lunch
wherever they could such as in their cars or in the open.
In December the Company paid a Christmas bonus of
$250 to each employee. Prior bonuses at Christmas were
$500. In January, pay raises were granted to many em-
ployees and an internal job bidding procedure was imple-
mented as was a new safety training program. Neither
the job bidding procedure nor the safety program had
previously existed. In February 1982, the Respondent
constructed a shower or washhouse for its employees.
V. THE 8(A)(I) VIOLATIONS
The Union's initial effort in early September 1981 to
acquire representation of the Respondent's employees at
the Linton facility was initially rebuffed by Burke. After
the Union met with the Respondent's employees and
filed a petition for certification as the Respondent's em-
ployees' representative, the Respondent agreed that it
would recognize the Union and proceed to negotiate a
contract.
During Reynolds' visit to the Linton facility on Sep-
tember 9, he was observed by an employee, Lindon
Moss. Subsequently, Moss asked Superintendent Young
why Reynolds was at the mine. Young told Moss that
Reynolds was there to organize the employees at the
Linton facility. Young stated that the Union "even knew
where he lived and it would be just like them to blow up
his house because that is how they operate." Young also
told Moss that the Union "was a bunch of thugs,
common criminals and the next time they came out to
the mine, he, Young, would offer them $20 and they
would leave them alone."
On or about September 13, employee Garyl Griffith
spoke with union organizer Dean Alumbaugh about the
Union. Alumbaugh told Griffith the procedure to follow
in getting the Union in at the mine and gave him authori-
zation cards to distribute to the employees for signatures.
Griffith signed a card that day. The following day, Grif-
fith spoke with employees about the Union while riding
to work with employees Donald Cotton and Wayne Jef-
fers and continued to talk with employees about the
Union until his discharge.
On or about September 14, 1981, Cotton had a conver-
sation with Young. During that conversation, Cotton
told Young that the employees were interested in getting
a union in at Linton and that Young had better talk to
them. Young told Cotton that they did not need a union
at Linton and if they got one the mine would be closed
down. On the same day at the end of the first shift about
3:30 p.m., Young called a meeting of all the employees
who then comprised the first and second shift. Prior to
the meeting, Young gave Griffith money to purchase a
case of beer which the employees drank during the meet-
ing. At the meeting Young stated that a new insurance
program was going to be instituted and that the Compa-
ny was going to pay a bonus consisting of 20 cents per
ton of coal produced each month which was to be dis-
tributed among the employees. The first bonus payment
was made to employees on October 15. Sometime in
September or October Young told Griffith that if the
Union got in at Linton he would tear the mine down,
sell it, and go into a different business. Around the same
time, Foreman Chuck Dillon told employee Moss that it
looked like Dillon's pit crew was in favor of a union.
Dillon told Moss that in that event the Company would
load up the wash plant and move it. Moss told Dillon
that Griffith wanted a union very bad and was one of its
biggest supporters.
On Sunday, October 25, as hereafter stated, a union
meeting was held at a restaurant where the Union ob-
tained authorization cards from a majority of the Re-
spondent's employees. The following Monday, Griffith
was discharged, allegedly for poor work performance
and attendance.
In addition to the bonus and promise of a program of
insurance, the Respondent paid a Christmas bonus to its
employees and gave some of its employees a 50 cent to
$1 raise in January 1982. In addition to the foregoing, a
washhouse was built and therein was provided a shower
stall, toilet, and sink facilities which prior to the contract
with the Union the employees did not enjoy. An eating
facility was also added comprised of a trailer with a
picnic table and a heater. The Company also instituted a
safety training program for the employees. All of these
changes involving the working conditions at the Linton
plant were put into effect prior to and during the time
that the Union was exerting efforts for recognition and
negotiating for a contract.
VI. THE 8 (A) (3) VIOLATION
The discharge of Garyl Griffith took place on the
morning of October 26, the day after the employees'
union meeting at which the employees signed authoriza-
tion cards for the Union. On that morning Griffith, who
was late for work, was taken to Young's office by Dillon
in order to see what assignment Young had for Griffith.
At Young's office, Young told Griffith that he was wast-
ing his time looking for something to do because he was
fired. When Griffith asked Young why he was terminat-
ed Young said he had "f--" up every piece of equip-
ment he had ever used, and had a lousy attitude as well
as having the "worst showup record" of anybody who
had worked for Great Lakes. Young also told Griffith
that he had a hundred reasons documented why he could
fire him and even if Griffith took the case to court he
was not smart enough to convince anybody that Young
was wrong for terminating him. Griffith later told Reyn-
olds that he had been discharged. Reynolds called Young
intending to ask for union recognition in view of Grif-
fith's firing and the acquisition by the Union of a majori-
ty of employee cards. Reynolds told Young that the
Union represented a majority of its employees and asked
for recognition. Young refused saying that he did not be-
lieve that the Union had a majority and, in refusing
Reynolds' offer to verify the majority status of the
Union, Young told Reynolds, "Hell no, I'll fight you all
the way."
Garyl Griffith had been employed by the Respondent
prior to his employment at the Linton mine in June 1981,
having previously worked for the Respondent at its
Blackhawk mine. Griffith acknowledged that he quit that
employment "before he got fired." Griffith also acknowl-
1213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edged that he performed poorly at Blackhawk and told
the mine superintendent at the time of quitting that he
would "rather party than work." When Griffith was re-
hired at the Linton facility, Young advised him that a
repeat performance of his conduct such as was exhibited
while he worked at Blackhawk would not be acceptable.
Young's evaluation of Griffith's work at the Linton facil-
ity was that Griffith was lazy, did not perform his work
well, slipped into old habits of coming to work late, and
argued with supervisors. He was also careless in the op-
eration of the Company's machinery and in general was
a poor employee. Griffith testified that he "needled"
Young about the Union on frequent occasions. He ac-
knowledged that such "needling" took place at the
Blackhawk mine and in September and October 1981 at
Linton. When interrogated about his characterization of
his language with Young as "needling" Griffith advised
that he "ribbed" Young about the Union. Griffith testi-
fied, "I ribbed him about the Union. I'd say, 'Oh, if we
had a Union, I wouldn't have to work in this mud' or
'Boy, if I was in the Union, I wouldn't have to run this
drill with the windows beat out of it and all this other
crap' and 'Boy, if I was in the Union, I sure wouldn't
have to come up here and beg you to let me off to a fu-
neral' and stuff like that, you know." Griffith acknowl-
edged that he did not appreciate Young telling him what
to do.
Young charged Griffith with negligent maintenance
and operation of the company equipment. On one inci-
dent Young stated that Griffith failed to change the air
and fuel filters on a scraper which he operated which re-
sulted in the expensive attendance of a mechanic. He also
cited an incident where Griffith put the wrong type of
oil in the scraper. Griffith stated that he was told by
Young to put 30-weight oil into the scraper and in an-
other incident Griffith allegedly caused damage to a
drill. Griffith maintained that the damage to the drill was
because of its poor condition and not because of his op-
eration. After Griffith was relieved from his duties of op-
erating this drill, similar problems were experienced by
his successor operator on the drill.
On Friday, October 23, Griffith was excused from
working during the afternoon because of a lack of things
to do. He left the mine facility and went to lunch. After
lunch he returned to the mine and went to Young's
office where he gave Young a can of beer. At this time,
Young made no mention of any significance about the
tender of the can of beer. The next day, Young found
empty beer cans in the vicinity of the dragline and alleg-
edly presumed that the dragline crew had been given
beer by Griffith. On Monday, October 26, Young dis-
charged Griffith for tardiness, absenteeism, poor work-
manship, and violation of his "no-alcoholic beverage"
rule. Young stated that the beer incident of Friday, Oc-
tober 23, was "the straw that broke the camel's back."
On that day the office secretary asked Young what she
should do with the can of beer which was in his office.
He told her to put it in the coke machine as "evidence"
in the event Griffith contested his discharge. At the time
of the offer of the beer to Young by Griffith, Young said
nothing in the way of a reproach to Griffith. Young tes-
tified that on October 26, the date of Griffith's discharge,
he had no knowledge of Griffith's activities with the
union campaign.
VII. DISCUSSION AND CONCLUSIONS
A. Respondent's Refusal to Bargain with the Union
The General Counsel has alleged that the Respondent
is guilty of violating Section 8(a)(5) and Section 8(d) of
the Act. Section 8(a)(5) and Section 8(d) provide as fol-
lows:
(a) It shall be an unfair labor practice for an em-
ployer:
(5) to refuse to bargain collectively with the
representatives of his employees, subject to the
provisions of section 9(a).
(d) For the purposes of this section, to bargain
collectively is the performance of the mutual obli-
gation of the employer and the representative of the
employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotia-
tion of an agreement or any question arising there-
under ....
These sections of the Act require the parties to such ne-
gotiating proceedings to engage therein with "an open
and fair mind, and a sincere purpose to find a basis of
agreement." NLRB v. A. W. Thompson, Inc., 449 F.2d
1333 (5th Cir. 1971). The duty to bargain in good faith is
not satisfied by "'surface bargaining' or 'shadow boxing
to a draw,' or 'giving the Union a runaround while pur-
porting to be meeting with the Union for the purpose of
collective bargaining."' NLRB v. Herman Sausage Co.,
275 F.2d 229 (5th Cir. 1960). The contention of the Re-
spondent in the face of the evidence in this record is lu-
dicrous. The Respondent contends that it bargained in
good faith; yet, a study of the record clearly shows that
the Respondent, while scheduling several bargaining ses-
sions, constantly, for reasons sometimes unclear, or com-
pletely absent, canceled the meetings. It is quite apparent
that the Respondent's bargaining representative, Con-
taldi, made himself unavailable at the designated meeting
sites and even at his office located in Los Angeles, Cali-
fornia. The record in this case even suggests that Con-
taldi was selected to bargain for the Respondent solely
because of his distance from the locale of the bargaining
table. There is no question that from November 4, the
date on which the agreement to recognize the Union and
bargain with it was made between the parties, the duty
to bargain in good faith toward the acquisition of a labor
contract rested upon both the Union and the Respond-
ent. All that can be said was accomplished over the
period of time from November 4 until the day of this
hearing was that the parties exchanged proposed con-
tracts. At the inception of the dialogue between the
Union and the Respondent it is apparent that the acquisi-
tion by the Union of representation cards from a majori-
ty of the Respondent's employees, followed by the dis-
charge of Griffith and the filing of a petition with the
1214
GREAT LAKES COAL CO.
National Labor Relations Board for certification of the
Union as the bargaining representative, prompted the Re-
spondent to agree that the Union would be the exclusive
representative of its employees and that it, therefore,
would commence subsequently to negotiate for a con-
tract. The Respondent specifically asked the Union to
withdraw its petition as a result and as a condition of the
Respondent's agreement of November 4. An initial meet-
ing subsequent to the November 4 agreement was held
on December 2. From that date until the date of the
hearing, little, if any, meaningful negotiation was con-
ducted. Delays were constant and at the insistence of the
Respondent. Contaldi did not attend previously arranged
sessions and almost always advised Reynolds of his un-
availability within I or 2 days of the set meeting. Fre-
quent occasions arose when Reynolds could not even
reach Contaldi to confirm set dates or to arrange re-
scheduling of negotiating dates. What negotiations were
discussed were always responded to by Contaldi that it
would be necessary for him to discuss the matter with
Burke prior to coming to any agreement. It appears from
the record that little, if any, discussion with Burke was
ever had and no pursuit of the issues was ever conduct-
ed. The request by the Union for documents such as the
seniority list of the Respondent and the Respondent's
proposals on the contract and portions thereof were de-
layed in transmission to the Union until approximately
February 11 and April 22, 1982, respectively. Such
delays finally prompted the Union to file the instant
action charging that the Company was not negotiating in
good faith. After the filing of the complaint and about
April 12, almost 2 months without contact between the
parties, Contaldi called Reynolds telling him that since
the hearing was rapidly approaching he wanted to nego-
tiate and get the issues resolved. He suggested an April
20 meeting. On April 20 Contaldi called and again said
he would not be in but would be able to appear on April
27. On April 27, Contaldi met with Reynolds. At that
time, Contaldi presented Reynolds with the Company's
contract proposals which were essentially the same ones
presented to the Union at the first meeting on November
4. At the April 27 meeting, nothing in the way of
progress was made between the parties since Contaldi
was busy making and returning phone calls and not con-
ducting negotiations with Reynolds. Again in early May,
the Respondent requested another postponement of the
hearing.
The continuance was denied and the hearing moved to
May 24. Contaldi called Reynolds on May 14, and indi-
cated he wished to negotiate before the hearing. A meet-
ing took place on May 20 and the subjects of wages,
pension fund, holidays, vacations, etc., were addressed;
however, Contaldi's response to most of these issues was
that he would get back to the Union on the proposals.
The meeting ended with an agreement to get back to the
Union on June 22 with the Company's proposals. Rey-
nolds was unable to reach Contaldi on June 2, and even
subsequently while the hearing was pending the Re-
spondent continued to break scheduled meeting dates
with the result that, at the time of the commencement of
the subject hearing, the Respondent was continuing its
dilatory conduct and effectively delaying the progression
of a meaningful bargaining procedure.
Contaldi contended that he advised Reynolds that the
Respondent was not financially secure and they needed 6
months before an agreement could be worked out and
that he also told Reynolds, "We cannot begin to serious-
ly negotiate a contract until we know we have a compa-
ny because it becomes very impractical if we are out of
business."
A study of the scheduled bargaining meetings discloses
that 17 meetings were scheduled, of which the Respond-
ent attended only 2. These meetings were spread over an
8-month period and the total amount of bargaining time
was approximately 5 hours. No explanation was made by
Contaldi as to why he failed to attend the scheduled
meetings. An appropriate characterization of this con-
duct was spelled out in NLRB v. Cable Vision, Inc., 660
F.2d 1, 4 (Ist Cir. 1981), where there the court said:
While an attitude -of openmindedness is a hallmark
of good faith bargaining and should be encouraged
by both the Board and the courts, the mere state-
ment that a party will "study" and "consider" pro-
posals, repeated ad infinitum and combined with
other evidence of deliberate delay, gives the impres-
sion of a party which is attempting to avoid rather
than to induce agreement.
The financial instability of the Respondent, if a fact, is
not a factor supporting dilatory conduct in engaging in
negotiations designed to reach a contract. The financial
status of the company in this and all such negotiations is
a factor to be considered, not one which will excuse
such gross dilatory conduct as exhibited by the Respond-
ent here. It is not insignificant to note that during the
period that the Respondent and the Union were ostensi-
bly "at the bargaining table" the Respondent gave wage
increases and a Christmas bonus to its employees and
unilaterally provided other benefits. Such benefits were
the subject of the negotiations between the Union and
the Respondent and to usurp the negotiations by unilater-
al action on the part of the Respondent evidences a lack
of intent to reach agreement with the Union in a reason-
able time and manner. It would appear that the Respond-
ent engaged itself in dealings with its employees with
total disregard to its agreement that the Union was the
exclusive representative of the employees in such mat-
ters. It would appear from the evidence in this case that,
except for the filing by the Union of a petiton for certifi-
cation with the Board, the Respondent would not have
signed the November 4 agreement. Having been forced
to acknowledge the Union and avoid a certification pro-
cedure because of the filing of the Union's petition, it
then took the tack of delay to avoid any meaningful ne-
gotiations between the Union and the Respondent. The
operations of the Respondent at the Linton site are by
their nature limited. It is conceivable that the conduct of
the Respondent may effectively delay the acquisition of a
labor contract until such time as the operations at the
Linton facility would have exhausted the coal supply.
For those reasons and in view of the facts above stated, I
find that the Respondent has failed to bargain with the
1215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union in good faith and that in so doing it has violated
the provisions of Section 8(a)(5) of the Act.
B. The Respondent's Union Animus and the Discharge
of Griffith
The evidence as stated heretofore supports the allega-
tion that the Respondent through Foremen Young and
Dillon clearly conveyed the intention to close the Linton
operation in the event the Union was successful in its
campaign. The testimony of the witnesses in this regard
stands uncontradicted by both Dillon and Young. Such
statements constitute a direct interference with an em-
ployee's right under Section 7 of the Act and constitute
a violation of Section 8(a)(l) of the Act. Custom Trim
Products, 255 NLRB 787 (1981). The statement of Young
that it would be futile to attempt to unionize the Linton
facility clearly suggested that in the event the Union suc-
ceeded in its efforts to represent the employees no con-
tract would be forthcoming. Not only is this consistent
with the attitude of Young regarding the Union but it
was certainly borne out by the subsequent conduct of the
Respondent in its negotiations with the Union even after
acknowledging its exclusive right to represent the em-
ployees. Young's statement in this regard was not only a
violation of Section 8(a)(1) of the Act but it was a pro-
phetic truth as manifested by the dilatory conduct of the
Respondent at the contract negotiations. Further, the
conduct of the Respondent in promising an insurance
program to the employees which had not existed previ-
ously and the institution of a coal production bonus for
the employees were benefits intended to deflate the en-
thusiasm for a change in the relationship between the
Respondent and its employees through the efforts of the
Union.
It is further clear from the evidence that the Respond-
ent was aware of the Union's efforts to organize its em-
ployees. Respondent had met with the union personnel in
August 1981 when the Linton premises were visited by
Reynolds. Reynolds requested recognition of the Union
and failing to obtain it began to meet with the employees
with the intent to organize the union campaign.
The recognition of the Union and the agreement to ne-
gotiate entered into on November 4 created a different
aura and set of circumstances in the relationship of the
Respondent and its employees. As of November 4, the
Respondent's employees were represented exclusively by
the Union in matters concerning wages, hours, and other
terms and conditions of employment; therefore, it is diffi-
cult to conclude that the actions of the Respondent sub-
sequent to November 4, 1981, were violations of Section
8(a)(1). They were, and as heretofore has been deter-
mined, violations of Section 8(a)(5), since the matters
comprising those benefits were subjects of negotiations
between the Union and the Respondent. Although it is
recognized that the granting of the benefits such as the
pay increase, Christmas bonus, providing of a luncheon
facility and a washhouse are consistent with the conduct
of the Respondent prior to November 4, 1981, they
cannot be said to have interfered with the employees'
rights under Section 7 since the Union obtained the ex-
clusive representation rights of these employees on No-
vember 4, 1981. They do stand, however, in support of
the findings herein made that the Respondent has not
acted in good faith in its relationships with its employees
and those employees' rights under Section 7. Such con-
duct establishes that union animus was the prevailing
aura surrounding the relationship of the employees, their
Union, and the Respondent since the inception of the
employees' efforts to obtain a collective-bargaining
agreement through their Union.
In such an atmosphere, the circumstances leading up
to and constituting the discharge of Garyl Griffith en-
ables the observer to discern the true motive of the Re-
spondent. Griffith was in fact a leader in the union
movement at the Respondent's Linton facility. While
others were also proponents of union representation,
Griffith had clearly made his position known to Young
during his years of employment with the Respondent.
While the "needling" of Young by Griffith on union
matters is not deemed to be protected activity, it was
clearly a source of knowledge to Young that Griffith
was prounion. Even more significant is the fact that, al-
though one may conclude that Griffith was, at best, a
marginal employee, no action was taken by the Respond-
ent against him until the day after the Union advised
Young that it had a majority of its employees within the
union campaign. Young attributed Griffith's work record
in regard to tardiness and absenteeism as his reason for
discharging him. When confronted with the attendance
record of Griffith, Young acknowledged that he had not
studied it prior to discharging Griffith and that his at-
tendance record was not such that a discharge should be
based upon that factor. Griffith's alleged tendency to
damage company equipment which he operated was a
circumstance which did not cause Young to take any
action against Griffith at the time. The record indicates
that the damage to the equipment operated by Griffith
was not exclusively the fault of Griffith but in some
cases was participated in by Young and attributable to
the mechanical condition of the equipment. Notwith-
standing the validity of the factors relied on by Young to
create the aura of a "poor employee" the significant and
telling factor is the time relationship between the acquisi-
tion by the Union of a majority of the Respondent's em-
ployees' support and the discharge of Griffith. I reject
totally the contention that Young did not know that
Griffith was a union advocate. The proffer of such de-
fense in itself suggests a fabrication of the reasons for the
discharge. Young contends that the incident regarding
the can of beer on October 23 was the "straw that broke
the camel's back," yet the testimony of the secretary es-
tablishes that Young had clearly intended to use the epi-
sode, if it became necessary, to support the discharge of
Griffith. He did not admonish Griffith at the time of
proffering the can of beer but rather he placed it in his
"book of evidence" to support his discharge of Griffith.
The Respondent, through Young, had ample knowl-
edge of Griffith's activities. Hostility toward the Union
was clearly evidenced by the statements of Young and
the several unilateral actions taken in disregard of the
Union's campaign.
1216
GREAT LAKES COAL CO.
The Respondent, through Young, contends that the
reason for the discharge of Griffith was not in any way
connected to Griffith's union activities.
However, Young's testimony, which I found to be fre-
quently evasive and often unresponsive, is characterized
as that of a witness who chose to be less than candid in
his contribution to the evidence in this case. His denial of
scienter regarding Griffith's union activities and his at-
tempt to include among the reasons for Griffith's dis-
charge his attendance record are only two of the factors
tending to repute the position of Young that Griffith was
fired because he was a "poor employee." The most sig-
nificant piece of evidence, although circumstantial, re-
mains the spontaneity of Griffith's discharge. On October
25, the Union acquired the support of a majority of the
employees of the Respondent and Griffith was dis-
charged on October 26. I am compelled to conclude that
the Respondent's tolerance of what may be considered a
poor employment record of Griffith did not evaporate
with the beer incident on Friday, October 23, but did
give Young the opportunity to rid the Respondent of a
union activist when it became apparent that the union
campaign was progressing in a positive manner. In ac-
cordance with the foregoing, I find that the discharge of
Daryl Griffith violated his rights under Section 7 of the
Act and the Respondent has thereby violated Section
8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. Since November 4, 1981, and at all times thereafter,
the Union was and continues to be the lawful and exclu-
sive bargaining representative for the purpose of collec-
tive bargaining for the nonsupervisor employees exclud-
ing office personnel of the Respondent.
2. The Respondent has failed to bargain with the
Union in good faith after November 4, 1981, by failing to
be present through its bargaining agent at previously
scheduled bargaining sessions without good or sufficient
reason or excuse and by making unilateral changes in
wages and other terms and conditions of employment
from and after November 4, 1981, and thus has violated
Section 8(a)(5) of the Act.
3. The Respondent has promised to, and has, put into
effect several benefits for its employees having the effect
of interfering with said employees' rights under Section 7
in violation of Section 8(a)(1) of the Act.
4. The Respondent has discharged Daryl Griffith from
its employ because of the exercise of his rights under
Section 7 of the Act in violation of Section 8(a)(3) of the
Act.
5. The violations above recited are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it is hereby recommended that
it be required to cease and desist therefrom and to take
certain affirmative action necessary to effectuate the poli-
cies of the Act.
[Recommended Order omitted from publication.]
1217