Hobbs & Oberg Mining Co., Inc., International Chemical Co. And Eastoak Coal Co.

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 575 (N.L.R.B. 1990)

HOBBS & OBERG MINING CO 575
Hobbs & Oberg Mining Company, Inc., Internation-
al Chemical Company and Eastoak Coal Compa-
ny, Joint Employers and Oklahoma Coal
Miners Union. Case 16-CA-13286
January 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 1, 1988, Administrative Law
Judge Richard J Linton issued the attached deci-
sion Respondent Hobbs & Oberg Mining Compa-
ny, Inc (Hobbs) and Respondents International
Chemical Company (ICC) and Eastoak Coal Com-
pany (ECC) filed exceptions and supporting briefs
The General Counsel filed a limited exception and
a supporting brief and a Brief in support of the
judge's decision
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,' and
conclusions as modified, and to adopt the recom-
mended Order as modified 2
1 We adopt the judge's finding that since Febru-
ary 1987 Hobbs, ICC, and ECC have acted as joint
employers of the employees in the bargaining unit
In so finding (regarding the pre-May 31, 1987
period), we note particularly (though not to the ex-
clusion of other facts noted by the judge) Larry
Blevins' March 1987 comment to Union President
Dean that Blevms was "running" the job, that
"Hobbs and Oberg no longer have anything to do
with the job, they're out," and that if there was
any union business to discuss from that time on,
Dean should talk with Blevins, Blevins' March or
Apnl 1987 statement to welder-mechanic Walker,
"I'm the boss, and you do what I tell you to do",
Blevins' March 1987 role in resolving the contract
dispute with the Union over the issue of Sunday
I The Respondents have excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all of the relevant evidence convinces us that they are incorrect Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
The Respondents ICC and ECC assert that the judge was an advocate
for a preconceived theory of liability and, in essence, demonstrated bias
After a careful examination of the entire record, we are satisfied that this
claim is without merit
2 We agree with the General Counsel's limited exception to the judge's
proposed remedy for the 8(a)(5) violation, and accordingly extend the
period of time for which the employees should be made whole for the
unlawful unilateral changes to Include the time from the expiration of the
collective-bargaining agreement until the parties negotiate a new agree-
ment or bargain to a lawful Impasse
pay, and Blevms' March 1987 participation with
James Hobbs and Ron Sisney in unsuccessfully
trying to persuade Walker to convert to a contract
welder-mechanic We do find it unnecessary, how-
ever, to rely on Blevms' alleged role in hiring
Sisney
2 We agree with the judge's finding that ICC is
liable as a joint employer As noted by the judge,
the evidence shows that ICC, through Vice Presi-
dent Kelley, made the policy decisions for the ICC
companies regarding coal, and although ECC was
the manager under the written agreement of March
24, 1987, with Hobbs, in practice Kelley directed
the operations so as to serve the interests of ICC,
ECC, and Hobbs In further support of the judge's
finding that ICC is liable under an agency theory,
we note that although the complaint refers to ICC
and ECC, ICC filed the answer and signed it ICC,
Kelley assigned Blevins, an employee at Inter-
Chem, to work at the mine, Hobbs entered into dis-
cussions with ICC representatives that culminated
in the March 24 management agreement with
ECC, after the May 31, 1987 closure of the mine,
Hobbs' co-owner, Chulick, met with ICC repre-
sentatives and reached agreement that ECC would
operate as a contract miner, and Blevms contacted
ICC's attorney to get advice over the contract dis-
pute regarding Sunday pay
3 Respondents ECC and ICC contend that they
were denied due process because the judge found
that the Respondents were joint employers after
the closing of the mine based on a theory that they
assert was not alleged in the complaint, relying in-
stead on an "unstated theory that the June 4 con-
tract was a sham" We reject this contention and
find that the complaint was worded broadly
enough to support the allegation that the June 4,
1987 subcontracting arrangement was a sham and
that the joint employer relationship continued
beyond this date We note that the Respondents do
not now claim that they were precluded from pre-
senting exculpatory evidence, nor do they argue
that they would have altered the conduct of their
case in any particular Although Respondents ECC
and ICC now claim that they had no evidence of
the specific basis to find joint employer after June
4, we note, as did the judge, that Hobbs argued in
its brief to the judge that the June contract mining
agreement is not a sham transaction to avoid the
collective-bargaining agreement or to discriminate
against its former employees
Accordingly, we are fully satisfied that the Re-
spondents were not denied due process because of
the alleged variance between the complaint and the
judge's theory for finding joint employer status
after June 4, and that the issue of whether a joint
297 NLRB No 85
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer relationship existed after June 4 was fully
litigated
4 We agree with the judge that the Respondents
violated Section 8(a)(3) of the Act by terminating
the employees of the bargaining unit on' May 31 3
In so finding, we rely on the strong circumstantial
evidence here to establish unlawful motivation In
particular, we rely on Blevins' expressions of bla-
tant antiunion animus, and Sisney's increased dis-
pleasure with and condemnation of the collective-
bargaining agreement, its restrictions, and the inde-
pendence it gave the bargaining unit, noted by the
judge, prior to the May 31 closing We find par-
ticularly ominous Blevins' comments to Stephens in
late May that the "company" would be a lot better
off without the Union, and if the men did not want
to work the way he wanted them to, "they'd just
close it down, close the mine and open it up under
a different name and go ahead and dig coal" Al-
though Kelley denies that Blevins spoke with him
about his frustrations with the collective-bargaining
agreement, the judge discredited Kelley's denial of
any pre-June discussion or pre-June agreement for
the subcontract, and presumably any talk of evad-
ing the contract It is clear that toward the end of
May 1987 Chulick approached ICC about Hobbs'
financial downturn when Kelley turned down Chu-
lick's offer to buy Hobbs It is also clear that
Kelley was aware that Hobbs' financial situation
was reaching the critical stage and one option
Hobbs had was to close That some discussion
about subcontracting or evading the contract oc-
curred before May 31 is evident from Sisney's
comment to Phillip Thomas on May 31 that he
should fill out an application and that when the
mine reopened it would be "nonunion" Moreover,
we rely on Blevms' comments to Dean and Walker
after the mine reopened in June that he had done
away with the Union as he had always wanted to
do, and "we're not going to honor the contract
Now that I've got rid of the Union, I can work
whoever I want or whatever for the same wages"
Based on the above, we find that the General
Counsel made a prima facie case of an 8(a)(3) vio-
lation by laying off and refusing to hire the em-
ployees, and that the Respondent did not meet its
3 We also agree that the Respondents violated Sec 8(a)(5) and (1) of
the Act with respect to refusal to recognize and bargain with the Union
and repudiation of the contract Respondent Hobbs argues that these ac-
tions should be viewed as a decision to close the mine followed by a sub-
sequent decision to reopen under ECC s management As the judge cor-
rectly reasoned, Otis Elevator Co, 269 NLRB 891 (1984), which Re-
spondent Hobbs cited as authority for the proposition that these were en-
trepreneurial actions that are not subject to the mandatory bargaining ob-
ligation, is inapposite when, as here, the actions in question are shown to
have been motivated by union animus and therefore are not within the
ambit of legitimate enterpreneunal considerations See, e g, Mid-South
Bottling Co, 287 NLRB 1333 (1988), enfd 876 F 2d 458 (5th Cir 1989)
burden of showing that the closing, layoffs, and
failure to rehire certain employees would have oc-
curred even in the absence of a union We note
here that Hobbs' co-owner, Chulick, did not testify
and infer that his testimony would have been ad-
verse to Hobbs' interest We find it unnecessary,
however, to rely on the judge's further elaboration
of what Chulick would have testified to had he
been called to testify
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents Hobbs & Oberg Mining Company, Inc ,
International Chemical Company and Eastoak Coal
Company, Porter, Oklahoma, their officers, agents,
successors, and assigns, shall take the action set
forth in the Order as modified
I Substitute the following for paragraph 2(d)
"(d) Offer all bargaining unit employees termi-
nated on May 31, 1987, immediate and full rein-
statement to their former jobs or, if those jobs no
lotiger exist, to substantially equivalent positions
Do this without prejudice to their seniority or any
other rights or privileges previously enjoyed Dis-
charge, if necessary, any employees hired in the in-
terim Make the bargaining unit employees whole
for any loss of earnings and other benefits suffered
as a result of the discrimination against them, and
as a result of the repudiation of the collective-bar-
gaining agreement, in the manner set forth in the
Board's decision modifying the remedy"
Ruth Small, Esq , for the General Counsel
Stephen L Andrew, Esq and with him on brief, D Kevin
Ikenberry, Esq (McCormick, Andres & Clark), of Tulsa,
Oklahoma, for Respondents International Chemical
Company and Eastoak Coal Company
R Michael Lowenbaum, Esq and with him on brief, Ken-
neth E Fleischman, Esq (Thompson & Mitchell), of St
Louis, Missouri, for Respondent Hobbs & Oberg
Mining Company, Inc
Thomas F Birmingham, Esq and David Weatherford, Esq
(Ungerman, Conner & Little), of Tulsa, Oklahoma, for
the Charging Union
DECISION
STATEMENT OF THE CASE
RICHARD J LINTON, Administrative Law Judge In
this Joint employer case there are three principal ques-
tions First, were International Chemical Company (ICC)
and Eastoak Coal Company (ECC) Joint employers with
Hobbs & Oberg Mining Company, Inc (Hobbs) for the
period of March to May 31, 1987 Second, were they
such for the period of June 1987 and beyond following
Hobbs' termination of the bargaining unit on May 31,
HOBBS & OBERG MINING CO 577
1987, and, in early June 1987, Hobbs' subcontracting its
coal mining operation at Porter, Oklahoma to ECC
Third, was the motive for the May 31 termination and
subsequent contracting out legitimate or unlawful Find-
mg the answer to be yes as to the first two questions,
and that the motive was unlawful, I order the joint em-
ployers to reinstate the bargaining unit, to make whole
the employees, and to recognize and bargain with the
Union
This case was tried before me in Muskogee, Oklaho-
ma, on March 22-23, 1988, pursuant to the October 30,
1987 complaint issued by the General Counsel of the Na-
tional Labor Relations Board through the Regional Di-
rector for Region 16 of the Board 1 The complaint is
based on a charge filed September 10, 1987, by Oklaho-
ma Coal Miners Union (Union or Charging Party)
against Hobbs & Oberg Mining Company, Inc (Hobbs)
and Inter-Chem Company/Eastoak Coal Company (Re-
spondents) The complaint tracks the format of the
charge in naming the Respondent parties I describe
them in more detail later For reasons I explain in a
moment, I have modified the style of the case to match
the evidence concerning the correct names of the com-
panies
In the complaint the General Counsel alleges that the
Respondent, as Joint employers, violated Section 8(a)(3)
and (5) of the Act on and after May 31 by withdrawing
recognition from the Union, terminating all unit employ-
ees, temporarily closing the mining operation, and re-
opening about a week later as a nonunion operation
Respondent Hobbs filed a separate answer as did Inter-
national Chemical Company (ICC) The complaint
names the second Respondent as "Inter-Chem Corn-
pany/Eastoak Coal Company" No answer was filed for
that Joint name Nor was an answer filed on behalf of
Eastoak Coal Company (ECC) However, if a Joint em-
ployer relationship is established, then service on one of
the joint employers is service as to each Mar Del Plata
Condominium, 282 NLRB 1012 fn 3 (1987)
By their answers Respondents admit certain factual
matters, but they deny violating the Act
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, Hobbs, and
(Jointly) ICC and ECC, I make the following
FINDINGS OF FACT
I JURISDICTION
Hobbs is a Kentucky corporation which mines coal
During the time in question, Hobbs possessed a permit to
mine coal from a mine near Porter, Oklahoma During
the 12 months ending May 31, 1987, Hobbs purchased
and received at Porter, Oklahoma, goods valued in
excess of $50,000 from Oklahoma suppliers Each of the
suppliers purchased goods in excess of $50,000 direct
from outside Oklahoma•
'All dates are for 1987 unless otherwise indicated
ICC, an Oklahoma corporation, operates as a trader of
coal and fertilizer products (2 240-241) 2 During the 12
months ending May 31, 1987, ICC performed services in
Oklahoma for customers each of whom sold and shipped
goods valued in excess of $50,000 to points outside Okla-
homa In its answer to the complaint, ICC admits it is an
employer within the meaning of Section 2(2), (6), and (7)
of the Act
II LABOR ORAGANIZATION INVOLVED
I find that Oklahoma Coal Miners Union is a labor or-
ganization within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
1 Collective-bargaining history
The date is not clear in the record, but at some point
in 1985 Hobbs purchased mining permit number 4155
from Bill's Coal Mining Company (Bill's) The permit is
to operate a coal mine at Porter, Oklahoma A coal pur-
chase ("marketing") contract between Hobbs and ICC
indicates it was as early as January 1, 1985 that Hobbs
took over 3
Darrell W Stephens is a former employee of Hobbs
and was a member of the Union's bargaining committee
when the collective-bargaining agreement was negotiat-
ed Stephens testified that a 3-year contract (effective
from January 1, 1985, through December 31, 1987) be-
tween Hobbs and the Union was negotiated in January
1985 when Hobbs took over from Bill's (1 72) However,
the document received in evidence as the collective-bar-
gaining agreement (CBA) between Hobbs and the Union
is for the period of August 9, 1985 to December 31,
1986, and "from year-to-year thereafter," unless terminat-
ed on notice The contract provides that it "shall be
binding for a period of three (3) years" from August 9,
1985 (G C Exh 6 at 24) Clifton E Walker who, along
with Terry Dean, signed the CBA for the Union, dates
the event as August 1985 (1 121)
In the CBA between Hobbs and the Union, Hobbs rec-
ognizes the Union as the exclusive bargaining representa-
tive for employees in the following unit (G C Exh 6 at
1)
All production and maintenance employees em-
ployed-at the Company's mine in the United States,
excluding all salaried supervisors, office clencal em-
ployees, guards, and supervisors as defined in the
National Labor Relations Act, as amended
Complaint paragraph 10 describes the bargaining unit es-
sentially the same words, with one exception—it omits
"all salaried supervisors" Because a salaried supervisor is
2 References to the two-volume transcript of testimony are by volume
and page
3 There are two versions of the coal purchase agreement in evidence
One (0 C Exh 5) bears the January 1, 1985 date The other (ICC Exh
2) shows January 30 The parties are unable to determine which date is
correct, but the difference in dates is immaterial
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not necessarily a statutory supervisor, I use the descrip-
tion set forth in the CBA
In its answer to the complaint, Hobbs admits paragaph
11, which alleges
11
Since on or about August 9, 1985, and at all times
material herein, the aforesaid Union has been desig-
nated exclusive collective-bargaining representative
of the Unit and since said date the Union has been
recognized as such representative by Respondent
Hobbs Such recognition has been embodied in suc-
cessive collective bargaining agreements, and the
most recent of which is effective by its terms for
the period January 1, 1987 until December 31, 1987
In answer to complaint paragraph 12, Hobbs admits
that all times since August 9, 1985, the Union, by virtue
of Section 9(a) of the Act, has been and is the exclusive
bargaining representative of the unit for the purposes of
collective bargaining
Clifton E Walker worked as a welder and mechanic
for Hobbs (1121-122) Walker testified there were about
35 employees in the bargaining unit when the mine
closed in May 1987 (1 131) As Union Treasurer Walker
(1122, 131) and Union Vice President Terry W Dean
(1 154-155) explain, the Union represents (or represent-
ed) only the employees of Hobbs at the Porter mine
When Hobbs took over, the Union changed to its current
name from the Welch Coal Miners Union when the mine
was operated by Bill's The Welch is a reference to the
small town of Welch in northeastern Oklahoma (Hobbs
Exh 3)
2 The business firms
Hobbs is owned by James F Hobbs (who also is presi-
dent), Perk Oberg, and John Chulick, the son-in-law of
James Hobbs (2 183) James Hobbs lives in Arizona and
Chulick lives in California (2 187)
Eastoak Coal Company (ECC) is a wholly owned sub-
sidiary of ICC (112, 2 259-260) Although ICC is com-
monly known as Inter-Chem (1145), ICC has a wholly
owned subsidiary named Inter-Chem Coal Company
(2 288) Occasionally in the record the parties say "Inter-
Chem" when, in fact, they are referring to ICC In this
decision I reserve the name "Inter-Chem" for the coal
company (Inter-Chem Coal Company), and not ICC
Because it is clear that ICC, the parent organization,
and nor "Inter-Chem Company" as named in the charge
and the complaint, is the correct name of that alleged
joint employer (with Hobbs and Eastoak being the other
two), I have modified the style of the case to correspond
to the undisputed evidence
The discrepancy in the names is of some signifiance
At paragraph 2(c) of the complaint, footnote 2, the Gen-
eral Counsel alleges, "hereafter, all references to Re-
spondent Inter-Chem also refer to Eastoak Coal Compa-
ny" At the hearing the General Counsel did not move
to substitute ICC for the name of Inter-Chem, nor did
she move to separate the names of Inter-Chem and Eas-
toak Company Consistent with the complaint, the Gen-
eral Counsel states (Br at 4), "Respondent Inter-Chem as
used in the Complaint and in this brief includes Interna-
tional Chemical Company and its wholly owned subsidi-
ary, Eastoak Coal Company"
As already noted, the complaint alleges a joint em-
ployer relationship, and it is only under the joint employ-
er theory that liability is alleged ICC and ECC are not
alleged to be a single employer not alter egos ICC
argues that even if ECC committed unfair labor prac-
tices, ICC would have no hablility because ICC and
ECC "are not considered a single employer " (Br
at 22) I address that issue when I begin an analysis of
the allegations, the evidence, and the contentions of the
parties
Jim D Kelley is a senior vice president with ICC
Kelley testified that ICC's principal business is trading
fertilizer products, and that it also trades coal Kelley
distinguishes ICC's trader status from that of a broker by
explaining that as a trader ICC acutally acquires title to
the goods, sometimes even possessions, before selling the
goods ICC also handles some transactions as a broker
When acting as a broker, ICC never acquires title to the
goods, but simply receives a commission, or fee, for
bringing together the buyer and seller for the sale of the
goods Kelley testified that ICC does not mine coal
(2 240-241, 288)
Kelley testified he runs ICC's coal division while Wal-
lace Wells, ICC's president, operates ICC's fertilizer divi-
sion (2 242) In addition to his senior vice president post
at ICC, Kelley is president of both ECC and Inter-Chem
(2 288)
3 Mining coal at Porter, Oklahoma
a General mine plans
Porter is a small town a few miles northwest of Mus-
kogee, in the direction of Tulsa The mine in question
lies a half-mile or so south of Porter (1 190) The "mine"
has three aspects—the office area, the pit itself, and the
tipple area where the coal is delivered for shipment The
pit, known as the "south pit," is a half-mile to a mile
south of the mine office A shop is situated adjacent to
the office (1 43, 122, 2211-212, 224)
The mine is an open pit, or strip mine, and not an un-
derground mine (1 43) The coal itself is "soft" coal, bitu-
minous coal (G C Exh 5 at 1) The coal has to be ana-
lyzed as to quality of content One important item among
the contents is the percentage of sulfur When the sulfur
content exceeds a certain percentage, it is not marketable
(1 80)
A vital factor in a coal mining operation is the general
mine plan As Darrell Wayne Stephens explains, it is the
strategy for the best method for getting the coal out of
the ground 4 (1 76-77) As ICC's Kelley explains, the
4 Called as a witness by the General Counsel, Darrell Wayne Stephens,
who was president of the predecessor union in 1983-1984, had worked as
tipple operator at the Porter mine for Bill s, and remained in that position
when Hobbs took over in mid December 1984 In the contract negotia-
tions between Hobbs and the Union, the tipple operator position was re-
moved from the bargaining unit and converted by Hobbs to a salaried
position with supervisory status (1 55-57, 72-95) Whether Stephens was
a statutory supervisor was not pleaded or litigated and appears immateri-
al
HOBBS & OBERG MINING CO 579
type of equipment used is an important factor (2 256)
The equipment used depends on the method chosen
Three approaches or methods are described in the
record One is the dragline method A dragline, as
Kelley describes, looks like a crane with a bucket on the
end of the cable The dragline operator throws out the
bucket As the operator pulls the bucket back, the bucket
scoops up a load of dirt (or coal) This method is cost-
effective in some situations, but not when the dragline
must be dismantled, moved, and reassembled frequently
The "overburden" (the dirt and rocks overlying the coal
seam) here is up to 60 feet deep (2 254-255)
A second method uses bulldozers (dozers) assisted by
scrapers (2 256) A dozer, of course, has a blade on the
front and pushes the material By contrast, a scraper
scrapes up the material and hauls it (2 192, 256) Al-
though the evidence does not describe a scraper in more
detail, it apparently is a piece of equipment with an oper-
ator or driver at the front dnvmg Behind the driver the
vehicle can open with a lowered blade As the vehicle
passes over the material to be moved, the driver lowers
the blade, the material is scraped into the cargo portion,
and the anver hauls the load to the designated unloading
Spot
Reversing the equipment mix of the second method,
the third method uses scrapers assisted by dozers (2 256)
b The purchase contract and the management
contract
In January 1985 Hobbs, as seller, entered into a Coal
Supply and Joint Marketing Agreement with AMAX
Coal Sales Company (AMAX) and ICC, the joint buyer,
to sell the joint buyer bituminous coal from Hobbs'
Porter mine for the 3-year term of January 1, 1985
through December 31, 1987 5 (2 243, G C Exh 5)
Under the purchase, or marketing, contract, Hobbs
had to supply a minimum of 180,000 tons of coal a year,
and the coal had to meet certain specified standards of
quality The agreement provided that title to the coal
would pass when delivered Into trucks or railcars at the
Porter mine (G C Exh 5 at 1-3) The delivery point is
called the tipple area (2 247)
As Kelley explains, and the contract discloses, Hobbs
would send an invoice to AMAX who sent a copy to
ICC who in turn would pay one half to AMAX Finally,
AMAX paid Hobbs the invoice amount ICC would bill
the customers to whom it and AMAX, as joint ventur-
ers, sold the coal (2 249)
The contract, a "take-or-pay" contract as Kelley de-
scribes it (2 247), was modified in a couple of respects in
June or July 1986 (ICC Exh 3), and again by an undated
memo (ICC Exh 4) which apparently issued in late 1986
Kelley testified that between January 30, 1985 and Jan-
uary 1, 1987 he visited the Porter mine many times 5 Im-
5 As noted earlier, there are two versions of this marketing, or pur-
chase, contract in evidence The first (G C Exh 5) recites that the par-
ties entered Into the agreement on January 1, 1985, whereas the second
(ICC Exh 2) states it was January 30, 1985 The difference is immaterial
to us, particularly since the stated 3-year term of January 1, 1985, to De-
cember 31, 1987, is the same in both
6 Because the January 30, 1985 version of the marketing contract was
introduced through Kelley (2243), it is possible, if January 1, 1985 is the
tially, Kelley testified, Hobbs employed the dragline
method and then later switched to the dozer/scraper
method (2 254-25) Darrell Stephens testified that the
switch occurred around November-December 1986
(1 75-76)
Hobbs began experiencing production and financial
difficulties in late 1986 Kelley testified that in that time-
frame Hobbs reached a point where it could not supply
the tonnage requirements of the purchase contract Ship-
ments to ICC's customers were sometimes disrupted, and
the customers complained to ICC ICC on occasion had
to buy coal on the open market, frequently at a loss, in
order to meet its commitments The quality of the coal
sometimes fell below the contract's specifications (2 250-
253)
Aside from switching its method of extracting the coal
in late 1986, as Stephens testified, Hobbs also sought fi-
nancial relief from the Union James Hobbs met with the
Union to discuss modifying the CBA to that end The
meeting was held at the civic center in Porter in about
November 1986 (1 46, 110-111, 116-117) Kelley testified
he appeared at the request of James Hobbs and gave a
10- to 15-minute presentation to the Union, and its mem-
bers in attendance, on the market conditions of the price
of coal (2 263-264) Kelley testified there was tremen-
dous pressure in the market to lower the price of coal
The situation was such as to create some doubt whether
the coal could be sold at a profit (2 263)
Whether from market forces or whatever, the late
1986 contract addendum (ICC Exh 4), which I men-
tioned earlier, reduced the coal's contract price paid to
Hobbs from $32 to $30 a ton About this same time the
November meeting resulted in a CBA modification,
dated December 22, 1986, and effective for the year be-
ginning January 1, 1987 (1 156-157, G C Exh 7) The
modification was a substantial concession by the Union
Wage rates appear to have been reduced by about $2 an
hour, the wage classifications were reduced to four, and
two classifications, including the tipple operator, were
removed from the bargaining unit Vacations were re-
duced to 1 week (employees with 10 or niore years of
service had received 3 weeks of paid vacation) Paid
holidays were cut from 8 to 4 The pension was eliminat-
ed, as was a "cost of living" increase apparently planned
for 1987
These were not the only changes Hobbs made to in-
crease production, cut costs, and become more competi-
tive In late 1986 discussions began between Hobbs and
ICC as to what else could be done Eventually, Kelley
testified, these discussions culminated in a management
agreement whereby Eastoak (ECC) would supply much-
needed management expertise to Hobbs, particularly as
to the extraction method Hobbs was using at the Porter
mine (2 252-254, 282) A written management agreement,
dated March 24, 1987, and effective to the close of busi-
ness on December 31, 1987, is in evidence (G C Exh 4)
The events I have described so far are generally undis-
puted At this point, however, controversy begins It
correct entered date of the agreement, that Kelley s first visit was in
January 1985
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
N,
concerns Larry G Blevms an employee of Inter Chem
Coal Company or Inter Chem (1139 2 234) There is no
dispute that Kelley assigned Blevms to work at the mine
(2 234 Blevins 2 299 Kelley) There is some discrepan
cy as to when Blevins arrived and there is a major dis
pute concerning his status there and concerning whether
he made certain statements at the Porter mine These dis
puted matters I shall address in a moment
The March 24 management contract ( Coal Mining
Management Agreement ) extends to four legal size
pages James F Hobbs signed for Hobbs and Kelley for
ECC The contract recites that the intention of the par
ties is that ECC will develop a plan of operations sub
ject to Hobbs approval, and then use its best efforts to
implement the plan ((Sec 3(a)) ECC is to exercise such
responsibilities as may be delegated to it by Hobbs (sec
3(b)) Within 20 days initially and from time to time
thereafter ECC is to furnish Hobbs with suggestions for
operating the mine All recommendations relative to
labor shall conform to the collective bargaining agree
ment as amended (Sec 3(c)) The agreement
provides that Hobbs will pay a fee to ECC per ton of
coal (Sec 4) Under Section 7(d) Capital and Labor
Hobbs is to provide all operating capital, labor materials
equipment, and supplies and Labor policies shall be ef
fective only if approved by [Hobbs], and shall conform
in all respects to the collective bargaining agreement, as
amended between Hobbs and the Union Section 7(d)
Kelley testified that between March 24 and May 31
1987 he (for ECC) was the contact with Hobbs James
Hobbs possibly suffered a heart attack around May 1987
although there are few details in the record (1 51 2 209)
One witness Terry Wayne Dean, does not recall James
Hobbs becoming ill (1165) Kelley talked frequently
with Jim Hobbs until the latter became ill and thereafter
to John Chulick on production and finances (2 258-259)
On occasion Blevms would consult directly with James
Hobbs or Chulick (2 221, 236 299)
Before March 1987, Kelley testified Hobbs had its
own mine plan In March ECC with Hobbs approval,
modified that plan in ways ECC thought the mining op
eration could be made profitable (2 285) The primary
modification appears to have been to change from the
dozer/scraper method of extraction to the third method I
described earlier the scraper/dozer Under the former
the dozers were having to push large quantities of dirt
across the pit With the ground overlay frequently
having a depth of 40 to 45 feet, the dozers ended up with
a considerable uphill push Kelley testified We saw this
[as] being a fatal flaw in the operation and thought that it
could be more effectively handled by scrapers picking up
material and carrying it as opposed to dozers pushing it'
(2 256)
Barely a week after Hobbs and ECC executed their
management contract and for reasons unexplained in the
record AMAX and ICC dissolved their joint venture
By written agreement dated April 1 (G C Exh 5) ICC
assumed the full role of the buyer under the January
1985 marketing agreement with Hobbs (2 298-299)
c The mine closes and reopens
Kelley testified that toward the end of May 1987 the
mining operation began to go downhill Kelley cites
slipping productivity (principally because appropriate
equipment was lacking) and an insufficient cash flow
(2266) Hobbs (apparently by John Chulick) approached
ICC about the problem and suggested that ICC buy
Hobbs ICC rejected that suggestion because of the large
debt structure afflicting Hobbs (2 266) Kelley was well
aware that Hobbs financial situation was reaching the
critical stage and that one option Hobbs had was to
close the mine (2 293)
On May 29 Hobbs attorney R Michael Lowenbaum
sent a registered letter (Hobbs Exh 1) addressed to the
Union President, Welch Coal Miner s Union of Welch,
Oklahoma c/o Hobbs & Oberg Mining Company, Inc
P 0 Box 179 Porter Oklahoma 74454 (2 302) After
an opening two line paragraph announcing that the law
firm represents Hobbs the letter advises
Please be advised that effective on or about May
31, 1987 the Company will cease production of
coal at the Porter Mine In connection with the
Company s ceasing operations the Company will
terminate the employment of all of its employees
covered by the above captioned collective bargain
mg agreement as of May 31 1987 Representatives
of the Company are and remain ready and willing
to meet and confer with representatives of the
Union concerning the effects of the Company s de
cision to cease operations on your membership
The return receipt (Hobbs Exh 2) reflects that the
letter was delivered to Kelly Bishop on June 1 (2 303)
Attorney Lowenbaum testified he does not know a Kelly
Bishop and that Hobbs informed him that no one by that
name had ever worked for Hobbs (2 304-305)
Terry Wayne Dean became the Union s president in
February Dean testified that although he thinks the P
0 Box 179 address is the address the Union would re
c,eive any mail (he testified the Union's secretary would
know) he does not recall receiving the letter Moreover,
there was no bargaining over effects or any request by
the Umon to do so because the Union s contract (in his
opinion) was still in effect and there was nothing to bar
gain about (1 170-172) The charge and other service
documents for the pleadings in this case show the P 0
Box 179 in Porter as the mailing address for Hobbs
Testimony confirms that to be the mine s address (2205
Sisney) The Union gives its address on the charge as
Route 2 Box 166A5, Muskogee Oklahoma 74401 and
that is the address shown on other service documents for
the pleadings There is no identification of Kelly Bishop
in the record I find the evidence to be insufficient to
show that the Union ever received attorney Lowen
baum s letter of May 29
Ronald L Sisney testified that Jim Hobbs hired him
on March 16 to be superintendent of the Porter mine
(2 182-184 202, 208) Sisney testified that in the last
week of May John Chulick told him Hobbs was going to
stop mining when all the uncovered coal had been re
HOBBS & OBERG MINING CO 581
moved Chulick instructed Sisney to call him when that
point was reached On Sunday, May 31, Sisney called
Chulick at 2 p m and made that report Chulick instruct-
ed Sisney to park the equipment and to lay off the em-
ployees, including himself (1188, 191) Sisney or other
Hobbs' supervisors notified at least some of the bargain-
ing unit that very day or evening (1 98, 106, Thomas,
1 119, Armstrong, 1151, 163, Dean)
On Sunday, May 31, John Chulick telephoned ICC's
Kelley and informed him of the mine's closing (2 264,
285, 293) Inter-Chem's Blevms was notified that same
evening by Ronald L Sisney (2 233)
That following week, on Monday, June 1, Hobbs (rep-
resented by Chulick and Attorney Pete Fanchi) ap-
proached ICC about the possibility of continuing the
business venture in some form Chulick and Fanchi met
with Kelley and Laurence A Yeagley Lasting most of
the week, 7 the discussions included proposals by Hobbs,
rejected by ICC, that ECC or Inter-Chem purchase the
assets of Hobbs or, alternatively, make a major cash in-
vestment in the operation Finally, on Thursday, June 4,
the parties agreed that ECC would operate the Porter
mine as a contract miner for Hobbs (2 267-269, 272, 283,
295) By mterlineation on the first page, and page 8, of
the mining contract, ECC's status is expressly labeled
"contract miner" and "independent contractor" (G C
Exh 3) The term of the agreement runs from June 4
until all "merchantable" coal has been removed (G C
Exh 3 at 6) The parties agreed that Hobbs would pay a
base price of $26 38 per ton delivered to the tipple site
(G C Exh 3 at 2) Of course, as Kelley testified, Hobbs
continued to be obligated under the 1985-1987 joint mar-
keting agreement (G C Exh 5) (the purchase contract)
to sell coal from the Porter mine to ICC 8 From June 4
forward, however, Hobbs no longer had any obligation
(and perhaps no right) to mine the coal (2 283)
About a week after the mine closed, or approximately
Sunday, June 7, Kelley, Blevms testified, called Blevms
and informed him that ECC would operate the Porter
mine as a contract miner (2 226-227, 233) During that
week, while the mine was closed and Hobbs and ICC
were negotiating, Blevms resumed his work at Inter-
Chem's mine at Welch, Oklahoma, and engaged in "sev-
eral" other activities (2 233, 236) When the Porter mine
reopened under ECC, Blevms was in charge (2 231)
Sisney testified that after the mine reopened under ECC,
he reported to Blevms (2 209)
d Hiring by Eastoak
Terry Wayne Dean was president of the Union during
the spring of 1987, and in that timeframe he operated a
scraper for Respondent (1148, 152, 159) Clifton E
Walker has been treasurer of the Union about 6 years
Walker worked as a welder/mechanic for the Respond-
ent (1 121-122)
7 Kelley testified the meetings extended Into Friday or even Saturday
(2268)
B Kelley actually said "Inter-Chem" (2 283) We know from Yeagley
that ICC is commonly known as "Inter-Chem" (1145) Indeed, the mar-
keting agreement expressly uses "Inter-Chem to denote ICC (G C Exh
5 at 1) In short, Kelley was not referring to Inter-Chem Coal Company
at this point
In the first part of June, Dean and Walker went to the
Porter mine, made application to work for Eastoak, and
stated that the Union still had a contract Dean testified
he asked Blevms whether "they" were going to honor
the CBA Blevms said, "No, we're not going to honor
the contract Now that I've got rid of the Union I can
work whoever I want or whatever for the same wages"
As far as he was concerned, Blevms said, there was no
contract with the Union (1150, 160)
Walker testified Blevins said he had done away with
the Union as he had always wanted to do Walker and
Dean asked him what was to be done about the wages
and benefits Blevms said he was going to pay $9 an
hour "across the board," that there would be no benefits,
and employees would have no holidays but instead
would have to work holidays Walker asked if Blevms
was going to hire him back Blevms said, "There's no
way that I'd hire you" Walker said "Fine" Walker did
not ask for Blevms to explain because Walker knew the
reason He and Blevms, Walker testified, had argued
"He didn't like me and I didn't like him" It was over an
incident involving a scraper, Walker testified (1 128-131)
I describe the scraper incident later and the subsequent
warning Walker refused to accept Although Blevms
does not deny having a conversation with Dean and
Walker in early June, he does deny the statements they
attribute to him (2 227-228)
Walker testified he was not hired by ECC (1130)
Dean apparently was not offered a job with Eastoak
until Sisney did so about the last of July or the first of
August (1167-168) The evidence does not descnbe the
job offered or reflect whether Dean accepted the offer
Only two of the General Counsel's witnesses testified
that Eastoak hired them—Philip L Thomas and Michael
J Armstrong
Thomas testified he was hired by Eastoak in mid-June
and worked there as a dozer operator until he was laid
off in February 1988 (1 96-97, 99, 104) When Sisney
called Thomas on May 31 and informed him the mine
was closing, Sisney told Thomas to fill out an applica-
tion Sisney added that the mine would be "nonunion"
(1 98) Armstrong was called about 2 weeks after he ap-
plied at Eastoak Initially he did not accept because he
already was working About a month later he told Ble-
vms he was not happy where he was The next morning
Sisney called Armstrong and hired him to operate a
scraper for Eastoak at the Porter mine (1111-112, 118)
Recall that beginning January 1, by the Union's re-
sponding to Hobbs' adverse economic condition, the
wages and benefits under the CBA in effect at Hobbs
had been reduced substantially Operating the Porter
mine nonunion, Eastoak eliminated either some or all
benefits and cut the wages to a flat $9 an hour for all
operators Thomas testified that "some" benefits were
eliminated along with the union contract (1 101), where-
as Armstrong testified they did not receive paid holidays
and, "We didn't have any benefits" (1112-113) By bene-
fits is meant, of course, payments not required by law,
for Armstrong concedes that F,astoak paid "overtime"
(obviously meaning time and one-half) after 40 hours of
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work, but there was no double time on Sundays, "noth-
ing like that" (1112)
Complaint paragraph 15 alleges that between "about
May 31 and June 2 all but approximately four unit em-
ployees filed applications with Respondent Inter-Chem"
However, only about 12 unit employees were rehired by
Respondent Inter-Chem Paragraph 17 alleges such con-
duct was motivated by union animus ICC argues that
the General Counsel "apparently abandoned" these alle-
gations (Br at 24) In her brief the General Counsel con-
tends (Br at 8), "In fact few of the original crew were
rehired, although the exact number is not known" I dis-
cuss these contentions later
B The Events in Dispute
1 Introduction
Although I have covered a couple of points of disput-
ed facts, and will resolve the disputes later, most of the
foregoing description summanzes undisputed facts The
significance the parties attach to those facts are in sharp
contrast, however
The timeframe of the background I have given actual-
ly extends over to the May 31 closing of the mine by
Hobbs and the reopening in early June by Eastoak The
timeframe of the events I now describe begins in Febru-
ary with Kelley's assignment of Blevms to the Porter
mine and extends, generally, to the mine's closing on
May 31
We are concerned in this timeframe principally with
the presence and actions of Blevms and the question of
whether his words or deeds assist in rendering ICC liable
here as a joint employer with ECC and Hobbs Most of
the facts in this timeframe are disputed Generally, I
credit the General Counsel's witnesses over those of
ICC The General Counsel's witnesses testified with ap-
parent sincerity and with a persuasive demeanor in com-
parison to the witnesses called by ICC
2 Labor relations
Earlier I described the March 24 management agree-
ment between Hobbs and ECC (G C Exh 4) Kelley
concedes that he assigned Blevins from Inter-Chem's
mine in Welch, Oklahoma to the Porter mine as, in Kel-
ley's words, "our representative on site" (2 269, 299) By
"our," I find Kelley meant ICC and its wholly owned
subsidiaries In effect, Kelley operated the coal division
as if ICC, ECC, and Inter-Chem are a single integrated
enterprise Blevins confirms that Kelley assigned him
there (2 234), and that the purpose was to be an adviser
and consultant under the management agreement (2 220,
235-236) As earlier mentioned, Kelley testified Blevms
reported directly to him but on occasion Blevms would
speak directly with "Hobbs/Oberg" (2 299)
Blevms concedes he visited the Porter mine once in
January and once in February, and he approximates his
arrival there, after assignment by Kelley, as late Febru-
ary or early March He testified he does not know
whether the management agreement was written or oral
(2 220, 235)
Darrell Wayne Stephens has been a member of the
Union over 9 years He was president in 1983-1984,
treasurer for 2 years, and on the bargaining committee
when the 1985-1987 contract was negotiated (1 72)
Originally a dragline operator for Bill's at the Porter
mine, Stephens was promoted to tipple operator when
Hobbs took over That position was removed from the
bargaining unit effective January 1, 1987, and James
Hobbs told Stephens he would have supervisory respon-
sibilities over coal blending, coal loading, coal sampling,
water sampling, parts, and parts purchasing Stephens at-
tended supervisory meetings thereafter (1 56-57)
Stephens credibly testified that Blevins did come to
the mine in January, and that through February Blevms
appeared more frequently Blevins said he was there as
an adviser In February Stephens asked James Hobbs
about Blevms' capacity President Hobbs told Stephens
he should obey the instructions of Blevms (1 57-58)
Union Treasurer Clifton E Walker, who worked as a
mechanic in the shop adjoining the mine office, credibly
testified that in February Jim Hobbs told him Blevins
was the general mine superintendent, and later Blevins
told him the same (1 123-124)
Stephens testified that Bill Keele had been the acting
mine superintendent for Hobbs Jerry Grooms was the
pit boss for Hobbs In about early March, apparently,
Stephens overheard Blevins tell Grooms he knew a man
he thought would make a better mine superintendent
than Keele and who would be more capable at managing
the men (1 86-87) Stephens' testimony that Ron Sisney
became the mine superintendent about mid-March coin-
cides with Sisney's testimony that Jim Hobbs hired him
on March 16 (2 182, 202, 206) Sisney concedes he was
referred to Hobbs by Blevins (2 207) Sisney testified he
had checked with Blevins about 2 weeks earlier seeking
work, but Blevins said he had nothing 9 They had a
second conversation and then, apparently on, a third oc-
casion, Blevms called Sisney and asked if he would be
interested in working for Hobbs According to Sisney,
he said possibly so and, on his own, went to the Porter
mine the next morning President Hobbs (it so happens)
was in the mine office that day, interviewed Sisney, and
hired him (2 207-208) I find that James Hobbs was in-
volved merely as a formality to implement the decision
by Blevms to hire Sisney In effect, James Hobbs served
as little more than Blevins' agent
The following day, Tuesday, March 17, Blevms, Ste-
phens testified, conducted a meeting with the mine's su-
pervisors Mine Superintendent Sisney, Pit Boss Keele,
Supervisor Grooms, and Supervisor Stephens Along
with discussing changes to be made in the pit area, Ble-
vins told the four they were not to tell the employees
that "Inter-Chem" was going to be managing the mine's
business As far as the employees were concerned, Ble-
vins said, he was there simply as a representative to
make recommendations as an adviser (1 59-60, 81)
Following the management meeting, the employees
were called in for a general meeting At the general em-
ployee meeting Blevins introduced Sisney as the new
mine supenntendent (1 59-60)
9 Stephens testified Sisney visited the mine in late February or early
March (1 59)
HOBBS & OBERG MINING CO 583
In the weeks thereafter, Blevms testified, he spent 60
to 75 percent of his time at the Porter mine, mostly in
the office, and the rest of his time at Inter-Chem's mine
in Welch (2 223, 236) Sisney testified he spent about 98
percent of his time at the pit where most of the employ-
ees worked (2 189-190, 211), that he, Keele, and Grooms
(the Hobbs' supervisors) are the ones who told the em-
ployees working in the pit what to do and how to do it,
and that Blevins had no authority to tell employees what
to do and did not undertake to do so (2 192-193) Blevins
agrees that he had no such authority, and testified that
he never disciplined any employees at the mine, and that
on the one occasion he recommended to Jim Hobbs and
John Chulick that Hobbs eliminate Stephens' position
and terminate Stephens, they rejected his recommenda-
tion (2 220-221) Sisney testified he reported daily, usual-
ly by telephone, to Jim Hobbs and John Chulick on mat-
ters pertaining to production and finances (1 186-187,
202) Before June, Sisney testified, Blevms maintained a
desk in the office After May 31 he maintained the same
desk, same chair, at the same spot (2 209-210)
Stephens credibly testified that Blevms, in March, told
him that he was not needed as much around the tipple
area, that they would not need to crush or blend as
much coal, and instructed him to spend more time at the
pit and relieve Sisney so Sisney could spend more time
in the office A day or two later Sisney discussed with
Stephens whether Stephens thought he could handle the
responsibility of Pit Boss (1 57-58, 83-84) Blevins also
had Stephens run errands for him, including picking up
money from ICC in Tulsa to cover the Hobbs' payroll
Scraper operator Terry Wayne Dean had been laid off
from Hobbs in December 1986 while vice president of
the Union He returned on recall sometime in Febru-
ary 10 Because the Union's president had taken a con-
tract job (outside the unit) with Hobbs, Dean became the
Union's president (1148, 152) His first day back, Dean,
as union president, went to the office to check with
James Hobbs or Perk Oberg on a general visit The only
person there was Blevms who told Dean that if there
was any union business to discuss from that time on,
Dean should talk with Blevins "Hobbs and Oberg no
longer have anything to do with the mine, they're out,"
Blevms added Blevms said he was the man Dean should
see because he was "running" the job (1 149-150, 166)
Blevins denies it (2 228) Dean impressed me as a more
sincere witness, and I credit him over Blevms
Blevms admits to a limited involvement in a discussion
with the Union over Sunday pay under the CBA As
Dean (1 150-151) and Walker (1 123-124) explain, in
March the workers complained they were not being paid
double time for working Sundays 11 Dean and Walker
1 ° On redirect examination Dean testified Sisney was already at the
mine daily when he returned from layoff (1 175-176) It appears, howev-
er, that Sisney was not lured until March 16 Although I credit the sub-
stance of Dean's testimony, he apparently became confused either as to
the month he returned or as to whether Sisney was already there
" Item (2) of the CM modifications that went Into effect on January
1 reads (G C Exh 7)
Forty (40) hours per week straight time, all hours over forty (40)
would be time and a half with the exception of Sundays which
would be double time
confronted Blevins over the issue Blevins said he would
check into it The next day, a Sunday, Blevins, showing
them a copy of the contract, said that double time would
be paid on Sundays only if 40 hours had already been
worked that week 12
However, Dean testified, the way Respondent was
scheduling hours, the affected employees would not
reach 40 hours until they worked through Sunday and,
therefore, they would receive only straight time pay for
working Sundays (1151) Dozer operator Michael J
Armstrong testified that Blevms, who had come to the
pit to explain Respondent's position, stated that Respond-
ent had to pay double time on Sunday only if the affect-
ed employee had already worked 40 hours that week
Armstrong places the event in early April rather than
March (1110, 115) The contract modification, quoted
earlier, is subject to being interpreted in a way which
supports either the Union or the Company
Blevins concedes he contacted Inter-Chem's attorney,
Laurence A Yeagley, for an interpretation of the CBA,
learned that double time did not have to be paid under
these circumstances, and so reported to Dean 13 That
ended his involvement, he declares In fact, Blevins as-
serts, it was Sisney who came to him with the Sunday
pay question (2 229, 238) I credit Dean and Walker
Aside from instructing a supervisor, Stephens, on what
to do and where to work, Blevms also, contrary to his
testimony and that of Sisney, became directly involved
with supervising the employees Welder and mechanic
Walker, the Union's treasurer, spent about 75 percent of
his time in the shop adjoining the office and he normally
received his work instructions from Blevins (1 122, 124)
On one occasion in late March or Apnl Blevins wanted
Walker to repair a broken part of a scraper by welding
the part Walker told Blevins the part could not be re-
paired but would have to be replaced with a new part
Blevms said he did not want to spend the money or time
getting a new part Walker again told Blevms a repair
would not work Blevins terminated the conversation by
telling Walker (1126) 14
I'm the boss, and you do what I tell you to do
Walker repaired it, but, as he had predicted, the part
broke almost immediately after the scraper returned to
service in the pit Respondent thereupon sought to issue
Walker a wntten reprimand over the incident (1 126-
127)
Sisney testified Blevms was not involved, that it was
simply a matter of Walker's incorrectly repairing a part
and not checking to see if it would work when the
scraper was returned to service When he sought to hand
the warning slip to Walker, Walker refused to take it
(2 199-201) Further contradicting Walker, Sisney testi-
fied Walker spent more time in the pit, where he per-
12 Dean s testimony is slightly confused on this point, but it seems
clear that is the thrust of his words, particularly as It matches the other
evidence
13 As earlier noted, Yeagley testified he is vice president and general
counsel for ICC (1135)
" I do not credit Blevins' denial (2 226)
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
formed mechanical work, than he did in the shop (2 211)
Blevms describes the time as a 50/50 split (2 224)
Walker testified that Union President Dean was with
him when, in the office, Sisney and Blevins wanted
Walker to sign a warning which blamed Walker for the
part's breaking Walker refused to sign (1 127-238) Dean
confirms he represented Walker (1 150) Walker never
filed a grievance over the matter (1128, 133, 167), appar-
ently because, as Dean testified, we never "received" (by
physically accepting in his hand) a warning (1166) Ble-
vms asserts he never attempted to give a warning to
Walker (2 222, 225)
I credit Walker and Dean over Sisney and Blevms
However, Walker used the generalized "they" when de-
scribing the actions of Respondent I find that, although
Blevms acted and spoke as Walker described, it was
Sisney who did the acting and speaking for Respondent
when Respondent thereafter sought to have Walker sign
the warning Blevins was present in the office on that oc-
casion, I find, but left the warning for Sisney to handle
3 Animus
As earlier mentioned, the complaint (pars 15-17, 20)
allege that Respondent violated Section 8(a)(3) of the
Act by discharging all unit employees on May 31 and re-
hiring about 12 only (of about 35) The evidence is
rather skimpy concerning not only the number of em-
ployees rehired in early June and later, but also concern-
ing the number of employees who even applied for em-
ployment with ECC when ECC took over in early June
The record contains evidence either directly reflecting
animus or which the General Counsel apparently con-
tends supports an inference of animus Most of the evi-
dence consists of remarks attributed to Blevms before
and after May 31 Earlier I summarized the statements
which, I found, Blevms made in early June I now cover
the pre-June statements attributed to Blevins by Ste-
phens Blevms denies making the remarks (2 226) I
credit Stephens Testifying with "straight eyes,"" Ste-
phens exhibited a more persuasive demeanor
As Darrell W Stephens credibly testified, in the
period of March-May Blevms discussed the CBA with
Stephens in conversations the two held in the office Ble-
vms would ask for Stephens' interpretation of whether
Blevins could move someone from a scraper to a dozer
Blevins would ask Stephens similar questions relating to
hours and operation of equipment (1 61-52) By April
Blevins began to express his opinion about the CBA to
Stephens After asking about an article in the CBA, Ble-
vins would cast aside the CBA, saying that It would be a
lot easier to manage the business without a (union) con-
tract Blevins said it seemed as though the union contract
had restricted the company from operating its business or
managing its people as Blevins thought the operation
should be managed (1 67)
15 In the American Indian Prayer (Red Cloud Indian School, Pine
Ridge, South Dakota), the supplicant, praying to the Great Spirit,
'whose voice I hear in the winds," humbly asks for wisdom to guide him
through life He concludes by asking, Make me always ready to come to
you with clean hands and straight eyes So when life fades, as the fading
sunset, may my spirit come to you without shame
By May Bevins' remarks to Stephens reflect that Ble-
vim' frustration at not having unbridled leeway in oper-
ating the mine had resulted in an attitude that was more
than simply negative Blevins' attitude now became char-
acterized by a threatening overtone Thus, in late May
Blevms told Stephens that the "company" would be a lot
better off without the Union, and if the men did not
want to work the way he wanted them to, "they'd just
close it down, close the mine and open it up under a dif-
ferent name and go ahead and dig coal" (1 68, 70)
Bevms made the close-down reopen threat in conjunc-
tion with a dispute with the Union over the handling of
explosives Stephens was assigned to do some blasting of
rock As Stephens had predicted, the Union went to
Sisney and protested that if the blasting was going to be
done regularly then the job should be posted for bidding
under the CBA Respondent ceased the blasting and re-
sumed digging with the equipment (1 68-70)
Sisney also increasingly began to condemn the CBA in
May This was in conjunction with Sisney's either chang-
ing, or wanting to change (the evidence is less than ple-
thoric), the shifts and hours of the equipment operators
to two shifts of 4 days of 10 hours Apparently some em-
ployees complained (1 87-88) Earlier Sisney also had ex-
pressed his desire not to have to pay double time under
the CBA for Sunday work (1 88, 124) That issue, as we
have seen, was resolved to his and Blevms' liking when
ICC's general counsel interpreted the CBA as not requir-
ing double time pay on Sunday unless the employee had
already worked 40 hours that week
Sisney's displeasure with the CBA, its restrictions, and
the independence it gave the bargaining unit is evident
from his failed attempt to change the hours of
welder/mechanic, and union treasurer, Clifton E
Walker Sisney testified that he changed the hours of the
mechanics At one point Sisney says there were three
mechanics (Walker, Olin Johnson, and a third whose
name he could not recall) working a 10-hour shift begin-
ning at 7 a m (1 193-194, 196) Later Sisney gave the
number of mechanics as four, including Ronnie Schoulz,
with Johnson and Schoulz being contract employees,
Walker and the fourth mechanic being members of the
bargaining unit, and the 4 working two mechanics per
shift of 4 days (and 10 hours) on and 4 days off (2 213-
214) Sisney wanted to stagger the starting times (and,
thus, the ending times) in order to provide more mainte-
nance and repair service for the equipment Walker,
Sisney testified, refused to change (2 214-215) Presum-
ably Walker relied on the CBA or some custom related
to the CBA For classifications with more than one shift,
the CBA defines the shifts and hours, with the first shift
beginning at 8 am (G C Exh 6 at 16)
It is unclear, therefore, whether Sisney ever imple-
mented his desired change, at least as to the two contract
mechanics, or whether Walker's adamant resistance frus-
trated Sisney's ability to implement his plan even as to
the two contract mechanics Sisney does not give the ap-
proximate date of this incident Walker does date a
group effort by Jim Hobbs, Blevins, and Sisney to per-
suade him to convert to a contract mechanic Placing
HOBBS & OBERG MINING CO 585
this event in March, Walker testified he declined the in-
vitation (1131)
4 Financial control
The record contains evidence relating to certain finan-
cial matters Hobbs contends the evidence does not sup-
port a finding that ICC had financial control of Hobbs
(Br at 18) ICC argues that Respondents did not jointly
control the mine's finances, and that in any event the evi-
dence is irrelevant because there is no allegation that
Hobbs and ICC (and ECC) constitute a single employer
or alter egos (Br at 20)
Respondents did not object to this evidence as irrele-
vant, and It could be argued that all concepts were fully
litigated (tned by implied consent) Nevertheless, the
General Counsel expressly states that only the joint em-
ployer concept is alleged (Br at 14) I interpret that to
mean the General Counsel disclaims any contention that
the concepts of single employer and alter ego were fully
litigated The General Counsel asserts that the Govern-
ment's allegation, and its position, is that ICC, "through
its agents, exerted sufficient control over the employees
of Respondent Hobbs to constitute a joint employer with
Respondent Hobbs" (Br at 14) Although that position
does not seem to answer the contention of irrelevance
ICC raises in its brief, I nevertheless shall summarize the
details quickly
The first item here involves an $18,000 check There is
no dispute Blevms sent Stephens to ICC's office in Tulsa
to fetch the check and that Hobbs deposited the check in
its own bank account in Porter Stephens testified this
occurred in about Apnl and was done, so he was told,
that Hobbs could meet its payroll (1 62-63, 70, 82, 84)
On a similar errand for Blevms, Stephens went to ICC in
Tulsa, obtained a sealed envelope containing a check,
carned it to a machine shop that had repaired an engine
block for Hobbs, received the engine block, and returned
with it to the mine (1 62-63, 84-85)
Testifying about both events, Kelley explained that in
both instances the checks represented money owed by
ICC to Hobbs for coal delivered and invoiced Payment
was expedited (that is, made in advance of the due date
under the contract) merely as a courtesy to Hobbs, and
the money was not an advance or a loan (2 273-278,
281-282) The General Counsel argues that Kelley's ex-
planation does not ring true because the expedited
$18,000 does not match with the invoices in evidence
(Br at 15) The problem in resolving this issue is two-
fold First, the three invoices in evidence (G C Exhs
10-12) bear March dates and range in amounts from
about $4500 to nearly $35,000 The evidence is insuffi-
cient to determine whether these invoices had been paid
or not when the $18,000 check was obtained, whether
ICC's books reflect the $18,000 was applied to these or
similar invoices, or other accounting details The same is
even more true as to the engine block Stephens secured
Kelley's testimony is rather puzzling on one point On
direct examination Kelley implied that ICC had expedit-
ed payment of invoices as far back as 1985 (2 279), but
on cross-examination by the General Counsel Kelley spe-
cifically states that early payments were made only after
AMAX dropped out (2 296-297) That, we know, did
not occur until April 1, 1987
Another financial item concerns road use rental fees
Darrell McCullough owns some important property at
the mine—the road from the mine to the tipple area
When Hobbs fell delinquent in its payments of the rental
fees, McCullough closed the road That action produced
results On May 4 Keller, Yeagley, and Blevins met with
McCullough just west of Porter They agreed to get
McCullough his money The next day McCullough re-
ceived one half of the money due him in the form of a
check from Hobbs (1 89-94) Kelley did not address this
specific incident Presumably his testimony, that all pay-
ments to or for Hobbs were for underlying debts owed
Hobbs, applies Again, the evidence does not descnbe
ICC's books and accounting entries so that the signifi-
cance of any money transfer can be evaluated
5 ICC logo stickers
The record contains evidence about equipment from
the ICC companies and the first appearance of large (13
inches by 18 inches) plastic logo stickers placed on the
equipment The logo apparently is used by any of the
ICC companies (G C Exh 2, ICC Exh 1) Because
there is evidence that the equipment was leased to Hobbs
(1 138, Yeagley)," and because two of the General
Counsel's witnesses testified that the sticker logos were
not placed on the equipment until after ECC took over
in June," I find no significance in the evidence even if
in fact a few of the stickers were on equipment before
May 31
C Discussion
1 Introduction
Resolution of the issues must be made at two points—
as of May 31, 1987, and again as of June 4, 1987 As al-
ready mentioned, I have resolved credibility in favor of
the General Counsel's witnesses Except where otherwise
noted, or where implicit, I find the disputed facts to
accord with the General Counsels evidence However,
that does not necessarily compel the conclusions the
General Counsel advances
2 Some legal concepts
The General Counsel alleges (complaint par 5) and
argues (Br at 14-19) that Hobbs and "Inter-Chem" are
Joint employers of the employees of Hobbs As I have
mentioned, the complaint proceeds against Hobbs and
"Inter-Chem Company/Eastoak Coal Company" The
joinder of the two names in that fashion could suggest a
single employer theory, but the General Counsel makes
clear that the Government is proceeding only on a joint
employer theory The complaint also expressly desig-
16 According to Kelley, Inter-Chem Coal Company had no Involve-
ment with Hobbs other than an emergency lease of some equipment on
one occasion (2271) The equipment lease Yeagley briefly mentions ap-
parently is with ECC
" Philip L Thomas (1 100, 105), Michael J Armstrong (1 111) The
logo stickers ICC Identified here (2 185) bear the name of Inter-Chem
Coal Company (ICC Exh 1)
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nates the name "Inter-Chem" to refer to Inter-Chem
Company/Eastoak Coal Company As we know from
the evidence, the actual corporate identity of "Inter-
Chem Company" is ICC Eastoak Coal Company (ECC)
is a separate company, although a wholly owned subsidi-
ary of ICC, and Inter-Chem Coal Company is yet a dif-
ferent company, although it also is a wholly owned sub-
sidiary of ICC I noted earlier, in this decision I have re-
served "Inter-Chem" for Inter-Chem Coal Company,
except where I quote a witness who, in his testimony, in-
dicates he is referring to ICC
In its brief ICC refers to the concepts of single em-
ployer and alter ego as well as that of Joint employer
(Br at 20, 22) The three concepts are distinct from one
another Marino Electric, 285 NLRB 344 fn 29 (1987) A
brief review of the concepts is appropriate
The starting point for a clear understanding of the
Joint employer and single employer concepts, and their
differences, is NLRB v Browning-Ferris Industries, 691
F 2d 1117 (3d Cir 1982) (BFI) As the court in BFI ex-
plains, a single employer relationship exists where two
nominally separate entities are actually part of a single
integrated enterprise so that, for all purposes, there is in
fact only a single employer The question is whether the
two firms constitute only one integrated enterprise BFI
at 1122 It is pertinent to note that while diamonds, defi-
cits, and taxes may be forever, corporate arrangements
need not be Specialty Waste, 269 NLRB 96 (1984) (single
employer status only temporary)
In deciding the singuler employer question, the Board
considers four factors," none of which, alone, is con-
trolling," nor need all be present 20 Single-employer
status ultimately depends on all the circumstances of the
case, 2 ' and such status is characterized by the absence of
the arm's length relationship found among umntegrated
companies 22 The fundamental inquiry is whether there
exists overall control of critical matters at the policy
level 23 The four factors are 24
(1) interrelation of operations,
(2) common management,
(3) centralized control of labor relations, and
(4) common ownership
In contrast, as the Third Circuit explains in BFI at
1122, the joint employer concept does not depend on the
existence of a single-integrated enterprise Therefore, the
four-factor standard is inapposite 25 Rather, a finding
" BFI at 1122
15 Emsing s Supermarket, 284 NLRB 302 (1987)
20 [bid
21 Image Convention Services, 288 NLRB 1036 (1988)
22 BFI, supra, Emsmg's, supra
23 Emsing's, supra
24 Images supra
25 BFI at 1122, W W Grainger, supra (1987) But see Clinton s Ditch
Coop v NLRB, 778 F 2d 132 (2d Or 1985) Although declining in Clin-
ton s Ditch to adopt a standard applicable to Joint employer cases, the
Second Circuit weighed five factors which all relate to labor relations
(I) Hiring and firing, (2) Discipline, (3) Pay, insurance and records, (4)
Supervision, and (5) Participation in the collective-bargaining process At
least two commentators have difficulty seeing any difference in this from
the Board's test W V Siebert and N D Webb, Joint Employer Single
Employer and Alter Ego, 3 The Labor Lawyer 873, 881 (No 4, Fall 1987,
ABA)
that companies are Joint employers assumes in the first
instance that companies are what they appear to be—in-
dependent legal entities that have merely chosen to
handle jointly important aspects of their employer
mployee relationship BFI at 1122
In joint employer situations, it is a matter of determin-
ing which of two, or whether both, respondents control,
in the capacity of employer, the labor relations of a
given group of workers BFI at 1122-1123 Thus, the
joint employer concept recognizes that the business enti-
ties involved are in fact separate, but that they share or
codetermine those matters governing the essential terms
and conditions of employment BFI at 1123, Chesapeake
Foods, 287 NLRB 405 (1987), W W Grainger, 286
NLRB 94 (1987)
To establish joint employer status, there must be a
showing that the alleged Joint employer meaningfully af-
fects matters relating to the employment relationship
such as hiring, firing, discipline, supervision and direc-
tion Chesapeake Foods, supra But the right of sufficient
control over the labor relations policies of a contractor
may well be a determining factor by itself in concluding
that the owner is in fact an employer of the contractor's
employees Cabot Corp, 223 NLRB 1388 (1978), affd
sub nom Chemical Workers Local 483 v NLRB, 561 F 2d
253 (D C Cir 1977) Finally, the burden of proving Joint
employer status is on the General Counsel
Alter ego status, a separate concept, is mentioned in
passing by one of the parties, and I shall treat it briefly
The alter ego analysis considers the four factors of the
single employer inquiry and more The focus of the alter
ego analysis is to determine whether one firm is simply
the disguised continuance of another firm Marino Elec-
tric, 285 NLRB 344 (1987) Typically an alter ego is es-
tablished for the purpose of evading (through a sham
transaction or technical change in operations) the origi-
nal employer's responsibilities under the Act, such as it
may have under a collective-bargaining agreement with a
union Marino, id, Watt Electric Co, 273 NLRB 655, 658
(1984)
3 Analysis
a The joint employer Issue
During the spring of 1987, did ICC and ECC "mean-
ingfully" affect the employment relationship ? I find the
answer to be, yes
Jim D Kelley, vice president in charge of ICC's coal
operations, is also president of ECC and president of
Inter-Chem Coal Company Regardless of whether a
single employer status was litigated as to ICC, ECC, and
Inter-Chem, it is clear that ICC, through Kelley, made
the policy decisions for the ICC companies regarding
coal Although ECC was the manager under the written
agreement of March 24 with Hobbs (G C Exh 4), in
practice Kelley directed the operations so as to serve the
interests of ICC as well as the interest of ECC and
Hobbs In so doing, Kelley assigned Larry G Blevms, an
employee of Inter-Chem Coal Company, to serve at the
Porter mine Ostensibly Blevms went merely to serve as
an adviser and consultant In fact, however, Blevins
HOBBS & OBERG MINING CO 587
went as the general mine superintendent James Hobbs
and Blevms both said so, and the conduct of all parties
demonstrates that it was so
For example, in February James Hobbs told Supervi-
sor Darrell Stephens to obey the instructions of Blevins
In March Blevins was instrumental in having James
Hobbs hire Sisney as the mine superintendent On March
17, the day after Sisney was hired, Blevins told all super-
vision, including Sisney, that "Inter-Chem" was now
managing the mine, but not to tell the employees that
fact (he also informed them of changes to be made in the
pit area) This meeting was followed immediately by one
with the employees at which Blevms (rather than James
Hobbs, Perk Oberg, or John Chulick) introduced Sisney
as the new mine superintendent 26
Also in March Blevins reassigned Supervisor Stephens
so that Stephens would spend more time in the pit reliev-
ing Sisney so Sisney could spend more time in the office,
and informed the newly returned Terry W Dean, now
the Union's president, that Blevms was "running" the
job, that Hobbs was out, and to see Blevins on any union
matters Even allowing for some exaggeration or puffing
in the "out" as to Hobbs, it is a fact that none of the
three principals of Hobbs was seen at the mine after
March until Chulick arrived in late May Kelley, howev-
er, testified that he visited the mine every week, daily in
some weeks, to confer with "our representative" at the
site, Larry Blevms, between March and the end of May
(2 269-270)
Blevins personally supervised welder-mechanic Clifton
E Walker In either March or April when they disputed
whether a scraper part should be replaced (Walker) or
repaired (Blevms), Blevms told Walker "I'm the boss"
and to repair it When the repaired item failed, as Walker
had predicted, Blevins and Sisney called Walker into the
office to give Walker a written reprimand Although
Walker refused to accept the document, the significance
of the warning incident is Blevms' personal involvement
in the disciplinary process Similarly, in March Blevms
participated with James Hobbs and Sisney when the
three unsuccessfully tried to persuade Walker to convert
to a contract welder-mechanic
Again in March Blevins personally handled the
Sunday pay matter After obtaining a favorable (to man-
agement) interpretation of the CBA from Yeagley, ICC's
general counsel, Blevms notified Dean and the other em-
ployees that there would be no double time pay on Sun-
days unless they had already worked 40 hours that week
On May 4 Blevms was among the ICC group (Kelley,
Yeagley, and Blevms) which met with landowner Dar-
rell McCullough when McCullough closed the road to
the tipple over nonpayment by Hobbs of the road rental
fees No one was present from Hobbs, not even Sisney
It is true that this example, as some of the others, show
Blevms more at the policy or managerial level then at
the pit level directly supervising equipment operators,
granting them time off, approving vacations, and such
26 Recall from Sisney's testimony that It was only the day before that
James Hobbs, at the mine office, hired Sisney No reason is suggested in
the record as to why James Hobbs, if he in fact was at the mine on
March 16, would not have stayed until the next day and introduced
Sisney
matters But that is why he had Keele replaced and
Sisney brought in Sisney was handpicked by Blevms for
that function Blevms served at the top, Just under
Kelley Joint employer status is not limited to the routine
matters of supervision, but Includes the policy level that
controls the mundane affairs of the pit level This is im-
plicit in the concept of meaningfully affecting the essen-
tial terms and conditions of employment of the workers
In April Blevms was becoming exasperated with the
Union and began commenting to Supervisor Stephens
about how it would be easier to manage the mine with-
out a CBA By late May Blevms' frustration with the re-
strictions (in his view) of the CBA took on an ugly tone
He now threatened that the "company" would be better
off without a union, and if the men did not want to work
the way he wanted them to, "they" would close down
the mine, open up under a different name, and proceed
to dig coal Kelley denies that Blevins spoke to him
about restrictions of the CBA (2 200) I do not credit
Kelley, and I find that Blevms and Kelley did discuss
such "restrictions"
I find that Blevms' threatening attitude was not solely
a spontaneous expression of his personal frustration, but
reflected the views of Kelley and Hobbs' John Chulick
By late May Chulick was the contact person at Hobbs
He came to the mine in late May, gave Sisney the timing
on when to cease mining, and the first week in June he
(with his lawyer) negotiated the mining contract with
ICC Chulick did not testify Drawing an adverse infer-
ence from his failure to testify, I infer that had he testi-
fied, and truthfully, he would have testified that no later
than late May he began discussions with Kelley and Ble-
vms about the feasibility of escaping the CBA by sub-
contracting the mining to ICC or one of its wholly
owned subsidiaries Although Kelley denies any pre-June
discussions or pre-June agreement for a subcontract (and
presumably denies any talk of evading the CBA), I do
not credit his denial (2 291-292) Except for routine de-
tails pertaining to the coal market, Kelley did not testify
with a favorable demeanor, and I do not believe him He
impressed me not as sincere, but as clever
Sisney also knew that Respondents planned to reopen
nonunion Thus, when Sisney called dozer operator
Philip L Thomas on May 31 to tell him the mine was
closed, Sisney invited Thomas to submit an application
when the new company reopened the mine, and that it
would be operated nonunion (1 98-99)
ICC attaches to its brief a copy of Island Creek Coal
Go, 279 NLRB 858 (1986), in which no joint employer
relationship was found between a coal mine operator
(ICCC) and an Independent contractor (LMC) whom
ICCC hired to perform various items of construction
work at the mine site Missing from that case is the per-
vasive control that Blevins exercised at the management
level here Nor did ICCC become involved in incidents
of discipline (Walker) or contract administration (Sunday
overtime pay) as did Blevms Blevms told all supervision
that "Inter-Chem" would be managing the mine No
similar announcement was made in Island Creek Al-
though more of the routine matters of alleged supervi-
sion were involved in Island Creek than here, General
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mine Superintendent Blevins, as I have described, caused
Sisney to be hired as the mine superintendent to handle
those matters I shall not list all the differences, but I
find Island Creek substantially different on the facts
If it can be said that Hobbs retained control and dis-
cretion under the written management agreement over
matters affecting its employees, as Hobbs argues (Br at
8), it also can be said, and I find, that in fact and practice
Hobbs relinquished the lion's share of that control to
ICC and ECC from March (February, actually) through
May 1987 During that March-May period, therefore, I
find that ICC and ECC were joint employers with
Hobbs of the employees in the recognized bargaining
unit
As for the period after May 31, the complaint alleges,
in paragraphs 15 and 17, that Respondents were unlaw-
fully motivated in refusing to rehire a majority of the
bargaining unit in June
Complaint paragraph 18 alleges that since May 31
"Respondents" have refused to bargain with the Union
by withdrawing recognition from the Union and repudi-
ating the CBA
Complaint paragraph 19 alleges that since June 8 "Re-
spondent Inter-Chem" has operated the Porter mine "on
behalf of Respondent Hobbs as a non-union operation"
and has unilaterally changed wages, hours, and terms
and conditions of employment of unit employees by re-
fusing to give effect to the CBA Complaint paragraph
21 alleges that conduct to be a violation of Section
8(a)(5) of the Act
Hobbs argues that after May 31 its status respecting
the mine is merely that of an "absentee owner" (Br at
18, 28) With its direct relationship severed from June
on, Hobbs argues, even if it were considered a joint em-
ployer up to May 31, that status ceased to exist thereaf-
ter because it terminated its employees on May 31 and
thereafter subcontracted the mining operation to ECC
(Br at 18, 21)
Respecting the timeframe of June and later, ICC and
ECC argue that the complaint does not specifically
allege successorship, that any such claim was not litigat-
ed, and that the evidence does not establish such (Br at
25)
In the Government's brief the General Counsel does
not expressly address the penod of June and later The
General Counsel's theory of joint responsibility after
May 31 by Hobbs and "Inter-Chem/Eastoak Coal Com-
pany" is stated without expressly addressing the fact
Hobbs subcontracted the mining to ECC beginning June
4 27
Hobbs argues that the June contract mining agree-
ment, the subcontract, is not a sham transaction to avoid
the CBA or to discriminate against its former employees
(Br at 26) In their brief, ICC and ECC suggest that for
them to be liable they would have to be shown to be a
single employer of themselves, and with Hobbs as well,
22 Counsel did not attach a proposed order to the General Counsel's
brief However, in the notice to employees counsel did attach, the em-
ployers designated to sign reflect the General Counsel s joint employer
theory, with signature lines for both Hobbs and Inter-Chem/Eastoak
Coal Company"
and that responsibility as either a single employer or as
an alter ego was not alleged (Br at 20, 22)
The General Counsel argues joint responsibility by a
theory of agency Thus, "The Complaint alleges that Re-
spondent Inter-Chem, through its agents, exerted suffi-
cient control over the employees of Respondent Hobbs
to constitute a joint employer with Respondent Hobbs"
(Br at 14) And, "If one company functions as the agent
of another, pursuant to a management agreement, then
they are joint employers if they share or co-determine
matters governing the terms and conditions of the em-
ployees" (Br at 17) The agency argument is expressed
without distinction as to the timeframe, although the ref-
erence to the management agreement clearly pegs it to
the March-May time period But as the General Counsel
alleges and argues responithility by Hobbs, ICC, and
ECC jointly, both before and after May 31, it is clear
that the Government relies on its agency theory to fix
responsibility of all three firms for the entire timeframe
of both before and after May 31 The General Counsel
cites and relies on cases such as Union Carbide Building
Co, 269 NLRB 144 (1984)
The General Counsel neither expressly alleges nor
argues a sham transaction In the absence of alleging and
arguing a sham transaction, or single employer or alter
ego, 28 how does the Government fix liability on all three
entities after May 31 and the June 4 subcontract" The
General Counsel's articulated theory is responsibility as
Joint employers without explicit reference to a sham
transaction
The General Counsel's unstated premise apparently is
that Hobbs remains in the picture because it is still the
owner of the mine permit Hobbs did not sell the mining
permit to ICC or ECC Thus, the theory apparently
runs, ECC became the mining contractor as Hobbs'
agent Even assuming the agent net snares ECC, what
about ICC" ICC argues that even if ECC is found to be
a joint employer with Hobbs, ICC has no liability be-
cause there is no allegation it is a single employer or
alter ego with ECC (Br at 20 fn 3, 22)
Hobbs views the General Counsel's position as an at-
tempt to buttress the joint employer theory by arguing
that Respondents acted in collusion to shut down the
mine, terminate union members, and repudiate the CBA
Hobbs argues that it acted for nondiscriminatory reasons
(Br at 22), and contends that the contracting out of the
mining operation was not a sham transaction to evade
the CBA or to discriminate against its employees (Br at
26, 30) Hobbs contends on brief that it ceased its mining
operations and contracted ("subcontracted") the work to
ECC "because of factors unrelated to labor costs," citing
Otis Elevator Co 29 and Milwaukee Spring Division 39 In
28 Toward the end of the Government s argument on brief, when li-
ability is attributed to Respondents for transference of the mine, dis-
charge of the employees and subsequent failure and/or refusal to rehire
said employees is violative of the Act," the General Counsel cites McAl-
lister Bros, 278 NLRB 601 (1986) In McAlhster the Board found the
companies Involved to be alter egos and a single employer Because our
case is premised on liability as joint employers, McAllister is inapposite
29 269 NLRB 891 (1984) (Otis Elevator II)
20265 NLRB 206 (1982) (finding no waiver by the union of the ngh to
bargain over a decision to relocate) In Milwaukee Spring II, 268 NLRB
Continued
HOBBS & OBERG MINING CO 589
any event, Hobbs argues, even assuming the decision to
shut down turned on labor costs, the Union waived the
right to bargain over the issue by virtue of either lan-
guage in the contract or the failure of the Union to re-
quest to bargain over the effects of the decision after
being given "proper" notice of that decision (Br at 28-
30)
As to the latter, I find no waiver The notice was sent
too late to have permitted bargaining before the May 31
terminations, and the credited evidence is that the Union
never received the notice Moreover, it is ironic that
Hobbs after-the-fact devotes much space and energy in
contending that Sisney was Hobbs' representative at the
Porter mine, yet Hobbs did not see fit to have Sisney-
the person on the scene rather than at an office in St
Louis—notify the union representatives of the decision to
close the mine and offer to bargain over the effects
Hobbs' contractual waiver argument is based on article
ii, section 2 3 of the CBA, the "management rights" arti-
cle (G C Exh 6 at 2) Hobbs expressly relies on the lan-
guage reserving to itself the sole right to "subcontract
work and determine the number, scheduling and du-
ration of shifts, establish, change, modify or abolish ma-
terials, processes, products, equipment and operations, in-
cluding the right to terminate, merge, or sell the business
or any part thereof"
However, the omitted portion of the subcontracting
clause reads, "subcontract work and arrange for work to
be done outside the plant by others or by other divisions,
departments or affiliates of the Company, " The full
clause is ambiguous, for it can be read to mean only por-
tions of unit work, such as repairs to equipment, not the
entire work of the unit Even if it plausibly can be read
to mean the entire unit, plausibility does not satisfy the
established requirement that waiver of a statutory right
must be clear and unmistakable Collateral Control Corp,
288 NLRB 308 fn 18 (1988)
But was Hobbs required to bargain with the Union
over its decision to contract out its mining operation" If
the decision turned on labor costs, apparently so under
Otis Elevator II Why did Hobbs decide to contract out
its mining operation" Unfortunately, neither James
Hobbs, Perk Oberg, nor John Chuhck testified Hobbs,
on brief, offers as one reason (the decision) the poor
health of James Hobbs Although it appears James
Hobbs had a heart attack in the late spring, there is no
evidence he did not recover sufficiently to oversee the
mining, or to testify, if he so desired Moreover, even
before his heart attack, James Hobbs stopped visiting the
mine after March, leaving the on-site management and
supervision of the mine to Blevms and Sisney
There is a lot of indirect evidence that Hobbs was suf-
fering financially ICC's Kelley testified regarding prob-
lems Hobbs was having with cash flow, credit, and
equipment availability But it appears labor costs were a
key factor in Hobbs' financial difficulty With Kelley's
help, James Hobbs persuaded the Union, at midterm of
the CBA, to agree to a substantial labor cost reduction
effective January 1, 1987 The record also reflects that
601 (1984), the Board, Member Zimmermann dissenting, reversed Mil-
waukee Spring I and dismissed the complaint
Blevins (and, as I have found, Kelley and Chulick)
wanted to convert the mining operation into a nonunion
venture because he viewed the CBA as too expensive
and restrictive We also know that when ECC began
hiring in June under the June 4 mining contract that ben-
efits were eliminated and wages were cut even further
If I were to find that Hobbs' decision to close the mine
was motivated by economics, and not by a desire to op-
erate nonunion, I would find that the decision to cease
operating its Porter mine and to subcontract the mining
operation to ECC turned on labor costs—a matter over
which the Union had substantial control and which was
amenable to resolution through collective bargaining
Hobbs made no attempt to notify the Union of its deci-
sion and to give the Union the opportunity to bargain
about the decision
The General Counsel's complaint does not expressly
refer to the subcontracting, nor does the General Coun-
sel's brief Indirectly, however, the Government attacks
the subcontracting First, the complaint alleges animus
motivated the joint employers to discharge the unit em-
ployees on May 31 Although the usual allegation of a
failure to rehire is missing, the failure-to-rehire concept
seems to be included in the Government's joint employer
theory of a continuing existence through the joint em-
ployer status, and the General Counsel argues on brief
that union animus motivated the failure to rehire (Br at
18, 19) I treat the animus allegation in a moment
The second indirect attack is the allegation that the
joint employers have refused to bargain with the Union
since May 31 by withdrawing recognition from the
Union and repudiating the CBA (complaint par 18), and
since "June 8" by "Inter-Chem" operating the Porter
mine "on behalf of Respondent Hobbs as a non-union op-
eration and has unilaterally" changed wages, hours; and
terms and conditions of employment, and has refused to
give effect to the CBA (par 19)
In effect the General Counsel as Hobbs clearly recog-
nizes, is relying on an unstated theory that the June 4
subcontract is a sham in order to join the March-May
period to the June period and to bind Hobbs, ICC, and
ECC as joint employers for the June (and beyond)
period as well as the pre-June period For if the subcon-
tract were a legitimate, arm's length arrangement be-
tween Hobbs, as the permit owner, and ECC, an inde-
pendent contractor, then neither Hobbs nor ICC would
be a joint employer with ECC after May 31 Any
remedy then would he only as to Hobbs for failing to
bargain over the decision to subcontract, although the
remedy might include requiring Hobbs to cancel the sub-
contract The question to address now is the ammus
issue
b The allegation of unlawful motivation
(1) The May 31, 1987 discharge of all unit
employees
In view of my findings regarding the motivation of
Blevms, Sisney, and Kelley, with Hobbs being jointly re-
sponsible, I find that indeed the subcontract was a collu-
sively inspired device to evade the CBA and to get rid
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Union All three Respondents participated in this
conspiracy to get rid of the Union and the CBA so that
all three could benefit from the permit granted by the
public (through the State of Oklahoma) to mine the coal
Because ICC and ECC were joint employers with
Hobbs in the February-May period, all are responsible
for the animus expressed by Blevins Indeed, I have
found that Blevins' expressions simply mirror the opinion
expressed to him by Kelley and Chulick In April-May
Blevms expressed his desire to operate nonunion I have
found that Kelley and Blevins did recommend to Hobbs
(Chulick) that it contract out the mining operation to get
rid of the Union, and that Hobbs (Chulick) adopted the
recommendations I therefore find that a motivating
reason for Respondents' closing the mine and terminating
the employees was to eliminate the Union
I also find that Respondents have not demonstrated
they would have taken this action even in the absence of
the Union and the CBA Indeed, had Hobbs been free of
the CBA, and been free to cut the pay of the operators
to $9 an hour with no fringe benefits, the evidence just
as strongly suggests that Hobbs would have continued to
operate the mine as it does that Hobbs would have sub-
contracted the mining operation to another in any event
Accordingly, I find that the three Respondents (Hobbs,
ICC, and ECC) violated Section 8(a)(3) and (1), as al-
leged in complaint paragraph 16, by terminating the bar-
gaining unit on May 31, 1987
Relying on the concept that certain conduct "inherent-
ly" discourages union membership, the General Counsel
cites a case for the proposition that a person is held to
intend the foreseeable consequences of his conduct (Br
at 18) If by "inherently" the General Counsel refers to
the principle that certain conduct is "inherently destruc-
tive" of important employee rights and requires no proof
of antiunion motive to prove a violation of the Act, I
find it unnecessary to pass on the applicability of that
principle here 31 However, in one recent case the Board
did apply that principle when it found that the purpose
of plant closures and reopemngs was to evade obligations
under a CBA swift Independent Corp, 289 NLRB 423
(1988)
(2) The June 1987 failure to rehire
Complaint paragraph 15 alleges that between May 31
and June 2 all but approximately four unit employees
filed applications "with Respondent Inter-Chem Howev-
er, only about 12 unit employees were rehired by Re-
spondent Inter-Chem" Respondents deny the allegation
(Par 17 alleges improper motivation for that action, and
par 20 alleges the action to be a violation of Sec 8(a)(3)
and (1) of the Act ) The presence of this allegation is
somewhat puzzling given the General Counsel's joint
employer allegations and theory That is, the remedy for
the unlawful discharge of the group is to reinstate the
group If Respondents chose to rehire some of the discn-
minatees, that action does not absolve it of the responsi-
3 1 See the Board s discussion of NLRB v Great Dane Trailers, 388 U S
26 (1976), in Century Air Freight, 284 NLRB 730 (1987) (a single employ-
er case)
bility to reinstate all Nevertheless, I shall discuss the al-
legation
The evidence fails to show how many Hobbs' employ-
ees filed applications with ECC or how many of such
applicants ECC hired The evidence shows that some ap-
plied and that at least a few were hired On an individual
basis, I find that a moving reason Blevins did not hire
Terry W Dean and Clifton E Walker was their union
capacities and expressions Blevms did call Dean some 2
months later, but by then the damage had been done to
the Union Blevins did not testify as to why he did not
hire Dean in June I find a violation as to the failure to
hire Dean
As for Walker, it possibly is true, as Walker speculated
at the hearing, that Blevins did not hire him because they
had experienced conflict (1 130-131) However, much of
that conflict arose, I find, from Walker's reliance on the
CBA as protecting his work schedule I find the General
Counsel's evidence to establish a prima facie case As
Respondents offered no evidence as to why it did not
hire Walker, Respondents, I find, did not meet their
burden of proof I therefore find the failure to hire
Walker to violate Section 8(a)(3) and (1) of the Act, as
alleged
Because the mining subcontract is tainted by the collu-
sion of the three Respondents to defraud the bargaining
unit members of their statutory and contractual rights,
the subcontracting device does not serve to sever the
joint employer relationship Finding, therefore, that the
joint employer relationship remained intact after May 31,
I also find that the joint employers, as alleged, violated
Section 8(a)(3) and (1) of the Act when they, acting
through their agent ECC, rehired only some of the bar-
gaining unit in June As the remedy for the unlawful ter-
mination of the entire bargaining unit encompasses the
relief for this violation, no additional remedy need be or-
dered
c The refusal-to-bargain allegations
(1) Complaint paragraph 18
I have found the Respondents conspired to enter a
subcontracting arrangement whereby Hobbs could evade
the CBA and ICC and ECC, as ostensibly good-faith in-
dependent contractors, would not be bound by the CBA
or have to recognize the Union I now find that, since
May 31, Hobbs, ICC, and ECC, as joint employers of
the recognized bargaining unit, have unlawfully refused
to recognize and bargain with the Union by withdrawing
recognition from the Union and repudiating the CBA, all
as alleged in complaint paragraph 18, and all in violation
of Section 8(a)(5) and (I) of the Act
(2) Complaint paragraph 19
Complaint paragraph 19 alleges, in effect, that ICC
and ECC, since early June have operated the Porter
mine nonunion as the agent of Hobbs, and have made
unilateral changes
The evidence supports the allegation I have found
that the contracting out was a sham, that it was for the
illegitimate purpose of eliminating the Union The second
HOBBS & OBERG MINING CO 591
step in the conspiracy was to erect a documentary
device to insulate the parties from responsibility for their
collusion By subcontracting the operation through ICC
to ECC, Hobbs appointed them its joint agent not simply
to operate the mine, but to implement the illegal scheme
Respondents ICC and ECC moved promptly to make
unilateral changes in the wage rates and benefits the em-
ployees had enjoyed under the CBA In so doing, the
three firms violated Section 8(a)(5) and (1) of the Act as
alleged
Otis Elevator II, cited and relied on by Hobbs, does not
apply because here the subcontracting was unlawfully
motivated Airport Distributors, 280 NLRB 1144 (1986)
In any event the change here did not effect a fundamen-
tal change in the nature of this business At all times
Hobbs has been the owner of the mining permit Before
February-March it also operated the mine From Febru-
ary-March it technically operated the mine, but under a
management contract which, in practice, gave ECC (and
ICC) the lion's share of the nght to control operations at
the mine Finally, on May 31 Hobbs took the additional
step of closing its operation as a prelude, I have found,
to the subcontracting device
Hobbs remains in the business of mining coal through
its agent, and joint employers, ICC and ECC Hobbs did
not sell its mining permit, and it merely leased its equip-
ment to ECC Through the sham subcontracting device,
Hobbs simply substituted a second set of employees
(those hired by ECC) for the first set (the recognized
bargaining unit)
I find that ECC began on June 4, 1987, to operate the
Porter mine as the agent of both Hobbs and ICC, and
constituted a joint employer along with Hobbs and ICC
in the clever, but illegal, scheme to defraud the bargain-
ing unit employees of their statutorily protected rights to
union representation and to the benefits of their CBA 32
Accordingly, I find that the Respondents, as alleged in
complaint paragraph 19, have unilaterally changed
wages, hours, and working conditions and refused to
give effect to the CBA, all in violation of Section 8(a)(5)
and (1) of the Act
CONCLUSIONS OF LAW
1 Hobbs, ICC, and ECC each is an employer within
the meaning of Section 2(2), (6), and (7) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 The following employees of Respondent Hobbs con-
stitute a unit appropnate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act
All production and maintenance employees em-
ployed at the Company's mine in the United States,
excluding all salaried supervisors, office clerical em-
ployees, guards, and supervisors as defined in the
Act
32 "Fortunately for everyone, the plan failed, as Clever Plans do,
sooner or later" 13 Hoff, The Too of Pooh at 37 (1982)
4 At all times since August 9, 1985, the Union has
been, and is, the exclusive representative of all the em-
ployees in the unit described above for the purposes of
collective bargaining within the meaning of Section 9(a)
of the Act
5 Since February 1987 Hobbs, ICC, and ECC have
functioned as joint employers and are joint employers of
the employees in the bargaining unit, described above,
employed at Hobbs' mine at Porter, Oklahoma
6 By terminating the employees of the bargaining unit,
descnbed above, at Porter, Oklahoma, on May 31, 1987,
Hobbs, ICC, and ECC, as joint employers, violated Sec-
tion 8(a)(3) and (1) of the Act
7 By refusing to rehire Terry W Dean and Clifton E
Walker by mid-June 1987 at the Porter, Oklahoma mine,
joint employers Hobbs, ICC, and ECC violated Section
8(a)(3) and (1) of the Act
8 By refusing since May 31, 1987, to recognize and
bargain with the Union as the exclusive collective bar-
gaining representative of the employees in the bargaining
unit at the Porter, Oklahoma mine, by withdrawing rec-
ognition from the Union, and by repudiating the collec-
tive-bargaining agreement (CBA) of 1987, joint employ-
ers Hobbs, ICC, and ECC have violated Section 8(a)(5)
and (1) of the Act
9 By operating the Porter, Oklahoma mine since June
4, 1987 on behalf of Hobbs as a nonunion operation, and
by thereafter unilaterally changing wages, hours, and
terms and conditions of employment of employees in the
bargaining unit by refusing to give effect to the 1987
CBA, joint employers Hobbs, ICC, and ECC have vio-
lated Section 8(a)(5) and (1) of the Act
10 The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondents have engaged in cer-
tain unfair labor practices, I find it necessary to order
them to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act
Because the subcontracting arrangement here, as I
have found, was unlawfully motivated, I shall order Re-
spondents to revoke it, if the Union so requests I shall
order revocation only at the Union's request because the
Union may prefer to include that subject in its bargaining
with the joint employers So long as the joint employer
relationship lasts, ICC and ECC must recognize and bar-
gain with the Union regarding wages, hours, and terms
and conditions of employment affecting the bargaining
unit 33 Hobbs, of course, remains obligated to recognize
and bargain with the Union even if the joint— employer
relationship with ICC and ECC is or has terminated
Respondent must also offer all bargaining unit employ-
ees terminated on 5 May 31, 1987, at the Porter, Oklaho-
ma mine, immediate and full reinstatement to their
33 If all the coal has been mined from the pit Involved in this case, and
the Joint employers have carried their relationship, and the work of the
bargaining unit, to another pit, then the joint employers duty to recog-
nize and bargain with the Union remains
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
former jobs at the Porter, Oklahoma mine," discharg-
ing, if necessary, any others hired into and holding those
positions, or, if their jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority or
any other nghts or privileges previously enjoyed, and
make them whole for any loss of earnings and other ben-
efits suffered as a result of the discnmination against
them 35 Backpay shall be computed in the manner estab-
lished in F W Woolworth Co, 90 NLRB 289 (1950),
with interest calculated as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987) 36 See generally
Isis Plumbing & Heating Go, 138 NLRB 716 (1962)
Although the CBA expired at the end of 1987, the em-
ployees would have enjoyed certain benefits under the
CBA until its expiration Respondents therefore must
make whole the bargaining unit employees for the value
of the benefits denied them the last 7 months of 1987
For those employees who were rehired by ECC, they
must be made whole for the loss of pay and benefits they
would have received under the CBA in the manner set
forth in Ogle Protection Service, 183 NLRB 682 (1970) "
There do not appear to have been any contractual trust
funds However, that can be fully determined in compli-
ance If there are any such funds, the amounts owed for
the contributions not paid are to be calculated in accord-
ance with Merryweather Optical Go, 240 NLRB 1213
(1979)
No additional remedial order is needed respecting the
unlawful refusal to rehire Terry Wayne Dean, Clifton E
Walker, and all members of the bargaining unit in June
1987 because any remedy is subsumed in the order to re-
instate them and to make them whole for their unlawful
termination on May 31, 1987
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 38
ORDER
Respondents, Hobbs & Oberg Mining Company, Inc ,
International Chemical Company and Eastoak Coal
Company, Porter, Oklahoma, their officers, agents, suc-
cessors, and assigns, shall
1 Cease and desist from
(a) Discharging, refusing to rehire, or otherwise dis-
criminating against employees because they are repre-
34 If the joint employers have ceased mining for coal at the Porter,
Oklahoma mine involved here, and have carried their joint employer re-
lationship, and the work of the bargaining unit to another mine, the rein-
statement obligation attaches at the new location
35 Identity of all members of the bargaining unit, and their addresses,
are among the matters which may be determined at the compliance stage
36 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 § 6621 Interest accrued before January 1, 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp, 231
NLRB 651 (1977)
37 Ogle applies only to situations where employees remain employed
by the employer but are not compensated in accordance with the existing
CBA MIS, 289 NLRB 491 (1988)
38 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
sented by Oklahoma Coal Miners Union (the Union) or
any other labor organization, or because they avail them-
selves of the protection afforded by a union or a collec-
tive-bargaining agreement
(b) Subcontracting work of the bargaining unit when
the purpose is to escape from the duty to recognize and
bargain with the Union and to evade the obligations of
the collective-bargaining agreement (CBA)
(c) Refusing to recognize and bargain with the Union
as the exclusive bargaining representative of all the em-
ployees in the unit described below
(d) Repudiating the CBA and making unilateral
changes in the wages, hours, and terms and conditions of
employment of the employees employed in the bargain-
ing unit descnbed below
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
nghts guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request, Respondent Hobbs must bargain with
the Union as the exclusive representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment The unit is
All production and maintenance employees em-
ployed at the Company's mine in the United States,
all salaried supervisors, excluding office clerical em-
ployees, guards, and supervisors as defined in the
Act
(b) So long as a joint employer relationship exists
among Hobbs, ICC, and ECC regarding the bargaining
unit, then, on request, the joint employers must bargain
with the Union as the exclusive representative of the em-
ployees in the appropriate bargaining unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement
(c) On request by the Union, terminate the June 4,
1987 contract mining agreement (the subcontract), or any
successor agreement involving work of the bargaining
unit
(d) Offer all bargaining unit employees terminated on
May 31, 1987 immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions Do this without prejudice to
their seniority cr any other rights or privileges previous-
ly enjoyed Discharge, if necessary, any employees hired
in the intenm Make the bargaining unit employees
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, and as a
result of the repudiation of the collective-bargaining
agreement, in the manner set forth in the remedy section
of the decision
(e) Remove from their files any reference to the un-
lawful discharges and notify the employees in writing
that this has been done and that the discharges will not
be used against them in any way
HOBBS & OBERG MINING CO 593
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(g) Post at their Porter, Oklahoma mine, or at any suc-
cessor location copies of the attached notice marked
"Appendix " 39 Copies of the notice, on forms provided
by the Regional Director for Region 16, after being
signed by the Respondents' authorized representatives,
shall be posted by the Respondents immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees are customarily posted Reasonable steps shall be
taken by the Respondents to ensure that the notices are
not altered, defaced, or covered by any other material
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply
39 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 Nation-
al 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"
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 or-
dered 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 collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT fail and refuse to recognize and bargain
with the Oklahoma Coal Miners Union (the Union) as
the exclusive bargaining representative of our joint em-
ployees in the unit described below
All production and maintenance employees em-
ployed at the Company's mine in the United States,
excluding all salaried supervisors, office clerical em-
ployees, guards, and supervisors as defined in the
Act
WE WILL NOT repudiate any collective-bargaining
agreement (CBA) which covers the employees in the
bargaining unit
WE WILL NOT subcontract work of the bargaining unit
when the purpose is to escape from our duty to recog-
nize and bargain with the Union and to evade the obliga-
tions of the CBA
WE WILL NOT make unilateral changes in wages,
hours, and terms and changes in wages, hours, and terms
and conditions of employment of the employees em-
ployed in the bargaining unit
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Oklahoma Coal Miners
Union or any other union
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL as your joint employers, on request, bargain
with the Union and put in wntmg and sign any agree-
ment reached on terms and conditions of employment for
you in the bargaining unit, and Hobbs & Oberg Mining
Company, Inc will, on request by the Union, bargain as
stated
WE WILL, on request by the Union, terminate the June
4, 1987 contract mining agreement (the subcontract), or
any successor agreement involving work of the bargain-
ing unit
WE WILL offer all bargaining unit employees terminat-
ed on May 31, 1987, immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions WE WILL do this without
prejudice to their senionty or any other rights or pnvi-
leges previously enjoyed If necessary to make room for
the returning bargaining unit employees, WE WILL dis-
charge any employees hired since May 31, 1987 WE
WILL make whole the bargaining unit employees for any
loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, and from our re-
pudiation of the collective-bargaining agreement, plus in-
terest
WE WILL notify each of them in writing 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
HOBBS & OBERG MINING COMPANY, INC
INTERNATIONAL CHEMICAL COMPANY
EASTOAK COAL COMPANY