Huberta Coal Co., Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1967

168 N.L.R.B. 122 (N.L.R.B. 1967)

122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Huberta Coal Co., Inc. and Huberta Mining Co., Inc.
and United Mine Workers of America, District #6
and Strip Miners Independent Union of Steu-
benville, Ohio, AKA the Employees Committee,
Party in Interest
Huberta Coal Co., Inc. and Huberta Mining Co., Inc.
and United Mine Workers of America , Petitioner
and Strip Miners Independent Union of Steu-
benville, Ohio , Petitioner . Cases 8-CA-4481,
8-RC-6544, and 8-RC-6559
November 7, 1967
DECISION AND ORDER AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On July 20, 1967, Trial Examiner George A.
Downing issued his Decision in the above-entitled
case, finding that the Respondents had engaged in
and were engaging in certain unfair labor practices,
and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel, Charging Party,
and Respondents filed exceptions to the Trial Ex-
aminer's Decision with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner to the extent consistent
herewith:
The Trial Examiner found, and we agree, for the
reasons set forth in the Trial Examiner's Decision,
that Respondents initiated, sponsored, formed,
promoted, assisted, and interfered with the adminis-
tration of the Employees Committee and thereby
dominated it in violation of Section 8(a)(2) and (1)
of the Act, and that Respondents initiated, spon-
sored the formation of, assisted, and contributed
financial and other support to the Strip Miners In-
The Trial Examiner correctly found that the Respondents constitute
a "single employer" for purposes of this proceeding In so holding, he re-
lied upon common ownership, management , and control of the two cor-
porations The following items in the record clearly support his finding
Common controlling ownership was held in the estate of Albert Schiappa,
which owned 1,998 out of 2 , 149 shares outstanding of Huberta Coal Co ,
Inc , and 576 out of 695 shares outstanding of Huberta Mining Co , Inc
Common management and control was vested in "interlocking
dependent Union of Steubenville, Ohio, herein
called Independent Union, in violation of Section
8(a)(2) and (1) of the Act. However, he found that
domination ceased when Respondents steered the
Committee to the lawyer for formation of the Inde-
pendent Union and that the Respondents did not
thereafter dominate the Independent Union. As ap-
pears hereinafter, however, we find merit in
General Counsel's contention that there was no
hiatus between the dominated Employees Commit-
tee and its successor, the Independent Union, and
that it is necessary to require disestablishment of
the Independent to remedy the unfair labor prac-
tice.
Formation and domination of the Employees
Committee took place while the United Mine Wor-
kers of America, herein called Mine Workers, was
organizing. On November 25, 1966, immediately
after having received a demand for bargaining from
the Mine Workers, Respondents called an em-
ployee committee meeting. At this meeting,
Carapellotti drafted the original "cooperation"
agreement, which was recopied and signed by all
the committeemen present as well as by several su-
pervisors. Thereafter, the same draft and other fac-
simile copies were circulated among the employees
by supervisors and employees, seeking additional
signatures which were obtained. The ""coopera-
tion" agreement expressly pledged the support of
the committeemen and Respondents to the forma-
tion of the Independent Union. O. Schiappa imple-
mented the "cooperation" agreement by furnishing
authorization cards to committeeman Rocchio, for
distribution to employees in furthering the forma-
tion of the Independent Union. Around December
1, 1966, the cards were distributed by Rocchio with
the assistance of committeemen Forgays and Brit-
tel. Concurrently with the committeemen's activi-
ties, Respondents' supervisors were obtaining addi-
tional employee signatures on other authorization
cards for the Independent Union as well as on co-
pies of another document by which the signatories
revoked cards which they had signed for the Mine
Workers. After all the signed cards were returned
to O. Schiappa, he summoned the Committee to the
Respondents' offices, where he and Cortez in-
structed the Committee to take the cards to Attor-
ney Anetakis for the purpose of forming the Inde-
pendent Union. Following this suggestion, the
Committee immediately went to see Anetakis with
the assistance of Cortez, who personally drove
Rocchio and another to the attorney's office.
directorates," in which the Respondents shared five common directors,
including the chairman of the board, and identical officers Matters con-
cerning employment and labor relations were managed and directed by 0
Schiappa, Cortez, and Carapellotti, all of whom were officers and
directors of both corporations Moreover, the Respondents had common
administrative offices, shared the same clerical staff, and frequently in-
terchanged their employees
168 NLRB No. 22
HUBERTA COAL CO. 123
Thereafter, on December 7, 1966, the formal or-
ganization of the Independent Union took place at
a meeting of employees at the All American
Bowling Lanes in Steubenville. At this meeting a
new committee was selected, in form, although the
record reveals that the same individuals were
elected who formerly served on the Employees
Committee, except for its new president, Alba-
rano.2 Subsequently, O. Schiappa and Cortez ad-
dressed a meeting of employees at mine 86 around
mid-December at which time O. Schiappa sug-
gested the employees get into the Independent
Union. Moreover, during the last week in
December, O. Schiappa and Cortez came to em-
ployee Novak's home and told him he should attend
a meeting to be held at the Respondents' offices to
"help push along" the Independent Union and "get
it going." On January 2, 1967, the Independent
Union's president, Albarano, was summoned to O.
Schiappa's home where Cortez and Carapellotti
were also present. They proceeded to discuss with
Albarano the subject of the Mine Workers, inform-
ing him that the Respondents could not function if
the Mine Workers were successful in the election.
Where, as here, very little time has elapsed
between the disappearance of the company
dominated Employees Committee and the creation
and emergence of the Independent Union, the ac-
tive participation in the latter organization by the
same individuals who were the former commit-
teemen in the dominated union taints the new Inde-
pendent Union.3 The Independent Union was for-
mally organized less than 2 weeks after the last
meeting of the Employees Committee and concur-
rently with its disappearance. This was too short a
span of time to permit a reasonable inference that
the former committeemen had transferred their alle-
giance from the company dominated Employees
Committee to independent action on behalf of the
employees. For there was an inadequate, in fact al-
most nonexistent, hiatus between the demise of the
Employees Committee and the birth of the Inde-
pendent Union. We view this as establishing a lack
of "cleavage or clear line of fracture" between the
two organizations.' Moreover, the record demon-
strates that the old ties of the committeemen to the
Respondents were not severed. Indeed, they con-
tinued to manifest themselves in the establishment
of the Independent Union. This is demonstrated by
the November 25 meeting at which time the com-
mitteemen, at the request of Respondents, pledged
their support for the formation of the Independent
Union and by their subsequent cooperation with
Respondents in aid of the Independent Union.
In view of the foregoing, we find that the Inde-
pendent Union was the succcessor to and the alter
ego of the Employees Committee. In these circum-
stances, Board and court precedent requires the
finding that the Independent Union inherits the il-
legality of the earlier company dominated Em-
ployees Committee and the effect of company
domination and support continues unless the
Respondents, before the creation or formation of
the Independent Union, have unequivocally and
publicly disavowed and disestablished the Em-
ployees Committee and have assured the em-
ployees of their freedom from further employer in-
terference in the choice of a bargaining representa-
tive 5 We find, contrary to the conclusion of the Trial
Examiner, that the transition did not satisfy these
requirements, as the Respondents did nothing be-
fore the formation of the Independent Union except
direct the former committeemen to an attorney's of-
fice, to repudiate the reasonable impression given
to the employees that the Independent Union en-
joyed the same favor and support as the Employees
Committee had possessed. On the contrary, the
Respondents' conduct, both before and after the
formation of the Independent Union, consisting in
part of speeches to groups of employees urging
them to join and support the Independent Union
rather than the Mine Workers, the circulation of
authorization cards for the Independent Union, and
the securing of revocations from employees who
signed cards for the Mine Workers, reinforced the
impression of continued favor and support.
As we have found that the Employees Committee
was dominated, interfered with, and supported by
the Respondents, and as its successor, the Inde-
pendent Union, was created without a disavowal by
the Respondents of its interference with, domina-
tion, and support of, the former organization, it
follows that the latter has inherited the disabilities
of its predecessor.6 Therefore, we conclude that the
2 In support of this finding , the following testimony on recross -examina-
tion of committeeman Rocchio appears in the record
Q (By Mr Anetakis ) Do you remember at that time whether
anther committee was appointed-
A Yes
Q -or elected'i
A. Yes
Q Do you remember the names of those individuals9
A Vince Albarano was elected
Q Was elected what?
A. President at that time
Q At the first meeting do you remember picking a new com-
mittee at the time?
A Yeah
Q Do you remember the names of those people9
A Yeah
Q Would you please tell us the names9
A The same guys I said before, they elected the same guys to
serve
See Majestic Metal Specialties, Inc , 92 NLRB 1854, 1859, where it
was stated that "the rationale of these cases is that the leaders in a com-
pany union are necessarily company representatives, accustomed to sub-
mission to the Company , and that 'men accustomed to such submission
seldom regain independence overnight "'
Farrington Manufacturing Company, 93 NLRB 1416, 1417
5 Majestic Metal Specialties, Inc., supra , N L R B v Southern Bell
Telephone and Telegraph Company, 319 U S 50
h Farrington Manufacturing Company , supra , N L R B v Southern
Bell & Telegraph Co , supra
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents dominated , interfered with , and con-
tributed support to the Independent Union in viola-
tion of Section 8(a)(2) and (l) of the Act. Ac-
cordingly , we shall order Respondents to dis-
establish the Independent Union as well as its
predecessor , the Employees Committee, in ac-
cordance with our established policy.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondents, Hu-
berta Coal Co., Inc. and Huberta Mining Co., Inc.,
Steubenville, Ohio, their officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, as so
modified:
1. Delete paragraphs 1(e) and 1(f), renumber
paragraph 1(g) and 1(f), and insert the following as
new paragraph 1(e):
"(e) Initiating, sponsoring, or forming any em-
ployee committee, independent union, or any other
labor organization, or assisting, dominating, or in-
terfering with the formation or administration of
any such committee, union , or labor organization,
or contributing financial or other support thereto."
2. Delete paragraphs 2(a) and 2(b), renumber
paragraphs 2(c) and 2(d) as 2(b) and 2(c), and insert
the following as new paragraph 2(a):
"(a) Withdraw and withhold all recognition
from, and completely disestablish the Employees
Committee, its successor the Strip Miners Inde-
pendent Union of Steubenville, Ohio, and any
successor thereto, as the representative of their em-
ployees for the purposes of collective bargaining."
3. Delete from new paragraph 2(b) that part
which reads "to be furnished" and substitute "on
forms provided."
4. Amend the first indented paragraph of the
notice attached to the Trial Examiner's Decision by
substituting "and its successor Strip Miners Inde-
pendent Union of Steubenville, Ohio," for "unlaw-
fully sponsored and assisted Strip Miners Inde-
pendent Union of Steubenville, Ohio."
5. Delete the seventh and eighth indented para-
graphs of the notice and substitute the following:
WE WILL NOT initiate, sponsor, or form any
employees committee, independent union, or
any other labor organization, or assist,
dominate , or interfere with the formation or ad-
ministration of any such committee , union, or
labor organization or contribute financial or
other support thereto.
6. Delete the 10th and 11th indented paragraphs
of the notice and substitute the following:
WE HEREBY withdraw and withhold all
recognition from, and completely disestablish
the Employees Committee, its successor the
Strip Miners Independent Union of Steu-
benville, Ohio, and any successor thereto, as
the representative of our employees for the
purposes of collective bargaining.
7. The address and telephone number for Region
8, appearing at the bottom of the notice attached to
the Trial Examiner's Decision, is amended to read:
Federal Office Building, Room 1695, 1240 East
Ninth Street, Cleveland, Ohio 44199, Telephone
522-3738.
IT IS HEREBY ORDERED that the election con-
ducted in Cases 8-RC-6544 and 8-RC-6559 on
January 10, 1967, among certain employees of Hu-
berta Coal Co., Inc., and Huberta Mining Co., Inc.,
be, and it hereby is, set aside.
[Direction of Second Election' omitted from
publication.]
' An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employers with the Regional
Director for Region 8 within 7 days after the date of issuance of the
Second Election by the Regional Director The Regional Director shall
make the list available to all parties to the election No extension of time
to file this list shall be granted by the Regional Director except in extraor-
dinary circumstances Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections are
filed Excelsior Underwear Inc, 156 NLRB 1236
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner: These con-
solidated proceedings were heard at Steubenville, Ohio,
on May 9, 10, and 11, 1967, pursuant to due notice. The
complaint in Case 8-CA-4481, which was issued on
February 21, 1967, under Section 10(b) of the National
Labor Relations Act, as amended, on a charge dated
January 25, alleged that Respondent engaged in unfair
labor practices proscribed by Section 8(a)(1) and (2) of
the Act as more fully set forth in section III, A, infra.
Consolidated therewith for hearing and decision were
certain objections filed by United Mine Workers of
America (Mine Workers herein) to conduct affecting the
results of the election in Cases 8-RC-6544 and
8-RC-6559.
Respondents answered denying the unfair labor prac-
tices as alleged. The party in interest (Independent Union
herein) also answered denying allegations of the com-
plaint concerning alleged assistance and domination by
Respondents.
Upon the entire record in the case and from my obser-
vation of the witnesses I make the following-
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Each of Respondent corporations is engaged in the
mining of coal and each sells products valued in excess of
$50,000 annually to Ohio Edison Company and Ohio
Power Company, each of which in turn is a public utility
HUBERTA COAL CO. 125
with gross revenues in excess of $250,000 annually and
each of which transmits electrical power valued in excess
of $50,000 annually to points outside the State of Ohio.
I conclude and find that each Company is engaged in
commerce within the meaning of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Mine Workers, the Employee Committee, and the In-
dependent Union are labor organizations within the
meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Introduction and Issues; Preliminary Questions
Respondents are engaged in coal mining operations at
a number of locations in Ohio and West Virginia.
Neighboring or nearby mines were being organized by
Mine Workers to Respondents' knowledge in the fall of
1766, and on November 25 Mine Workers filed a
representation petition covering Respondents' employees
under Case 8-RC-6544. On December 15 another
representation petition was filed under Case 8-RC-6559
by the Independent Union, which was formally organized
around December 71 and which succeeded a less formal
employee committee which came into being in mid-Sep-
tember.
Following a stipulation, a consent election was held on
January 10, 1967, at which Mine Workers received 29
votes and the Independent Union 59. Mine Workers filed
objections with the Regional Director, who issued his re-
port on February 14 in which he found that certain objec-
tions were without merit and that others concerned sub-
stantially the same conduct as that involved in the Mine
Workers' unfair labor practice charge on which the com-
plaint was issued in Case 8-CA-448 1, supra.
The complaint in the latter case alleged that Respond-
ent engaged in various specified acts of interference,
restraint, and coercion (i.e., threats to shut down, granting
of benefits, surveillance of a Mine Workers meeting, cir-
culation of petitions to have employees revoke authoriza-
tion cards for Mine Workers) and of assistance and
domination of the employee committee and the Inde-
pendent Union.
The issues herein revolve chiefly around Respondents'
conduct in connection first with organizing the employee
committee and later the Independent Union, as well as
other conduct in direct opposition to Mine Workers. For
preliminary disposition, however, are questions (1)
whether Respondents constituted a single employer, and
(2) whether Louis Tranquil and Albert Holderman were
supervisors or agents for whose conduct Respondents
were liable.
(1) Though Respondents attempted at the hearing to
support their pleaded denials of complaint allegations that
they were a single employer, they do not renew the con-
tention in their brief and have, presumably, abandoned it.
Indeed their brief consistently refers to "the Company,"
"the employer," and "management" in the singular. It is
also noted that both corporations were named as a single
employer in the representation proceedings, that a single
unit of their employees was specified, that Respondents
stipulated for an election in that single unit , and that a sin-
gle election was held. In any event, I find that the
evidence fully established the factual allegations of the
complaint concerning the common ownership, manage-
ment, and control of the two corporations. See Cone
Brothers Contracting Co., 135 NLRB 108, 118-120,
enfd. 317 F.2d 3 (C.A. 5), cert. denied 375 U.S. 945;
Pizza Products Corporation, 153 NLRB 1265. At the
time of the events herein the affairs of both corporations
concei ping matters of employment and labor relations
were managed and directed by Orlando C. Schiappi, first
vice president; Frank Cortez, second vice president; and
Paul R. Carapellotti, secretary-treasurer, who par-
ticipated directly in much of the conduct involved herein.
(2) Louis Tranquil and Albert Holderman were
frequently referred to by employee witnesses on the
record as foremen, mine bosses, or pit bosses, from whom
they took orders and directions. Respondents stipulated
that other mine foremen, Edwin R. Dittrich and Anthony
Leo, were supervisors but contended that Tranquil and
Holderman were not because they were without authority
to hire, fire, or effectively to recommend, and because
they could give only routine directions to the employees.
There was also, organizationally the further fact that John
Dooley was mine superintendent over Tranquil and Hol-
derman, a circumstance which did not apply in the case of
Dittrich and Leo. However, Dooley himself was a
director in both corporations, and the mines which he su-
pervised were scattered over such an area that obviously
much of the responsible direction of the work force
necessarily remained in the hands of Tranquil and Hol-
derman, as the employee witnesses testified. Thus Cortez
testified that Dooley's "office" was at the repair shop at
mine no . 86 and that a drive of some 50 miles would be in-
volved for Dooley to make the circuit of the four mines
which he supervised. Schiappa in turn estimated that it
would take Dooley a day to make a trip around the mines
and that mine no. 200 itself involved "a hundred little pro-
perties."
The evidence showed further that the employee wit-
nesses took orders and accepted direction from Tranquil
and Holderman without question, and regarded the latter
as supervisors and as representatives of management in
the conduct hereinafter referred to. Indeed, the em-
ployees could scarely have believed otherwise for, as will
later be noted, Tranquil and Holderman were engaged in
precisely the same course of conduct as Respondents' ad-
mitted supervisors and representatives. Thus the em-
ployees had justifiable cause for believing that Tranquil
and Holderman were acting for and on behalf of manage-
ment when they engaged in the conduct in question. Betts
Baking Co. v. N.L.R.B., 380 F.2d 199 (C.A. 10); I.A.M.
[Serrick Corp.] v. N.L.R.B., 311 U.S. 72, 80.2
B. The Employee Committee
Respondents held three meetings with their employees
around mid-September at the All American Bowling
Lanes in Steubenville. The events were best described in
the testimony of Vincent Albarano (later to become pre-
sident of the Independent Union), who was called by the
General Counsel. Albarano testified that the meeting was
called by Orlando Schiappa and that there were present
All events herein occurred in 1966 unless otherwise specified
Though the evidence contained references to a third foreman, Chester
Tomaszewski, whose status appeared to be identical with Tranquil and
Holderman, the former was not charged with the commission of unfair
labor practices
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some 60 employees "on the Ohio side," as well as Schiap-
pa, Carapellotti, and Cortez and Supervisors John
Dooley, Tranquil, Dittrich, and Leo. Schiappa kept the
chair most of the time and talked mostly about a pension
plan, though there was also some discussion of wages and
further benefits. Schiappa suggested that the employees
elect committeemen to represent them concerning a
proposed pension plan and that one man be elected from
each mine. An election proceeded on that basis in the
presence of Respondents' officials and supervisors and
with Cortez and Carapellotti assisting. Cortez passed out
the pencils and paper for ballots and Carapellotti assisted
by making statements to help out the employees in setting
up the program.
Testimony by Carapellotti and Cortez for Respondents
was not in substantial conflict with the foregoing. Carapel-
lotti testified that both employees and company officials
signed an attendance roster at each meeting, that he him-
self may have suggested that the employees take a vote to
select their representatives, and that he tallied the ballots
(voted secretly by the employees) and entered the results
on the tally sheets. Carapellotti testified that subjects of
discussion included the pension plan, a bonus, insurance
benefits, and a wage increase and that the balloting was to
elect those who would represent the employees "in the
company affairs." Cortez, however, mentioned only the
pension plan and a bonus. Furthermore, notations which
Carapellotti made on some of the tally sheets accorded
with Albarano's testimony (and the understanding of
some of the other committeemen) that the election was of
"Pension representatives." I therefore credit Albarano's
testimony.3
Carapellotti also identified separate tallies which he
made of votes on the question whether the proposed plan
would be acceptable for 1 year. The results were tailed as
unanimously in the affirmative at one meeting, 23 to I in
another, and 18 to 1 on the third.
The General Counsel's evidence did not refute
Respondents' denial of knowledge that Mine Workers
was engaged at the time of the meetings in actively or-
ganizing their employees though Carapellotti admitted
knowing of earlier attempts to do so. Mine Workers
Representative Rudolph Vitter testified that the Union
"intensified" its campaign in the summer of 1966, but its
activities then consisted of contacting the employees at
their homes.'
There was no evidence that the committee thereafter
formally organized itself by the election of officers or a
chairman or made any provision for membership or for
dues. There was also no evidence that the committee held
any meetings as a committee or with the employees or
that it formulated and presented on behalf of the em-
ployees any list of demands. Nor is the record clear that
any formal negotiation meetings were held with manage-
ment . Though Schiappa claimed at one point that there
were so many meetings he was confused, his testimony
otherwise indicated there were no formal negotiations as
such for as he put it, after the committee was elected,
"[W]e started right away some kind of discussion with
the men, if you want to call it, among other things."
Though, as I have found, the committee was elected
only to represent the men concerning the pension plan,
Schiappa testified that the committee expressed concern
during the discussions about the bonus being discon-
tinued and asked that it be converted into a permanent
wage increase, the amount of which was finally agreed
upon as 23-1/2 cents. Though Schiappa fixed the time of
that alleged agreement as late October or early
November, his subsequent actions dispute that claim.
Thus on November 14 Schiappa sent to all employees
a lengthy letter announcing management's intention of
changing its bonus plan but made no reference either to
the committee or to any conversion of the bonus to a
wage increase. His letter read in part as follows:
At our last meeting with you, as you know, we paid
a production incentive bonus for the year ended July
31, 1966. We also agreed to pay you-thereafter- a
production incentive bonus for each three-month
period at the end which our books would show a
profit.
We slightly revised the plan by deciding to com-
pute the bonus per each two-month period rather
than per each three-months period.
This little change enables us to announce that
YOU HAVE A BONUS COMING TO YOU
RIGHT NOW for August and September which
have been two profitable months.
Schiappa's letter continued with a recitation of existing
benefits and warned the employees against those who for
personal interest might make promises ranging from job
security to triple time for holidays when worked.
Though the evidence again failed to establish actual
knowledge by Respondents that their own employees
were being organized at that time, the warning against
promises of common types of union benefits reflected
awareness of the organizational activities which were
going on in the area, a fact which Carapellotti and Schiap-
pa admitted knowing. However, the change in the bonus
plan as announced and the actual payment of that bonus
is not claimed by the General Counsel to be violative of
the Act.
C. The Independent Union
On November 23 Mine Workers wrote Respondents
informing them that it represented a majority of their em-
ployees and requesting a meeting for the purpose of
discussing rates of pay, wages, hours, and other condi-
tions of employment.
Respondents reacted instantaneously by calling a com-
mittee meeting at the bowling lanes on November 25. 01-
drich Novak testified that Mine Superintendent Hol-
derman notified him the committeemen were being called
in and that he was to be there, that some seven to nine
committeemen attended, and that there were also present
Schiappa, Carapellotti, and Cortez, and Supervisors
Dooley, Dittrich, Leo, Tranquil, and Holderman. Vin-
cent Coletti testified that Carapellotti himself wrote out
the original draft of a document which Coletti recopied
3 The committee as identified in oral testimony and by Carapellotti's
tallies and subsequent documents were August Desender, Everett Wal-
den, Richard Maidens, Herman White, and William Burns for the Coal
Company, and Oldrich Novak, Samuel Forgays, Charles Rokos, John
Rocchio, and Thomas Brittel for the Mining Company.
' Though Pete Vein testified that Schiappa stated that if the employees
joined the Union the Company would have to shut down, that testimony
was not corroborated by Albarano, who attended the same meetings as
Vein did, and Cortez denied that anything was said about closing down
the mines I find that Vein confused the September meetings with later
ones at which similar statements were attributed to Schiappa
HUBERTA COAL CO. 127
because the Employers stated, "It would be legal that
way," and which read as follows:
To whom it may concern.
It is agreed that we agree to cooperate for one year
and ask for no outside representation during this
period except for us forming an Independent Union
to do our negotiation on future classification of jobs
and bargaining so that there will not be any dis-
crimination.
It is agreed that the bonus of 23-1/2 cents will now go
on an hourly wage increase effective Oct. 1966.
The suggestion of an independent union was made
either by August Desender or Samuel Forgays, following
which, Novak testified, "[I]t was put on the paper."5
Novak also testified that there was some discussion at the
meeting concerning wages and Carapellotti stated that if
the employees did not tell the Company what they
wanted, "[T]he United Mine Workers will come in with
their contract and we'll just tell them we can't pay it."
The "cooperation" statement was signed by the com-
mitteemen present as well as by Dittrich, Leo, and Hol-
derman. Thereafter the same draft and other facsimile co-
pies were circulated among the employees at the mines
and many additional signatures were obtained. All of the
drafts bore the signature of Dittrich who, according to the
undenied testimony of Carl Yeager and Martin Skedel,
handed them the document at the mine where they were
working. Yeager asked Dittrich what the statement was
for, but Dittrich made no direct answer. Skedel testified
that Dittrich read the statement first and told him he
could sign if if he wanted to but did not have to sign if he
did not want to.
Vincent Albarano and Pete Vein were solicited at the
mine by their foreman, Tranquil. Albarano inquired about
the Independent Union mentioned in the statement and
Tranquil stated that the committeemen whom the em-
ployees elected thought that the Independent Union
would be a good thing and they were doing it for the
benefit of the employees. Albarano objected that the
committee had no right to qualify as an independent union
because they had been elected only to represent the em-
ployees for a pension plan. Tranquil replied that they
were doing it because of concern for the employees and
that Albarano might as well sign for if he did not do so he
would not have a job anyway.
Vein testified that Tranquil asked him to look the state-
ment over and to sign it, and when Vein did not sign,
Tranquil asked why he did not want to do so. Vein stated
that he preferred to wait to see what the other men were
going to do. Tranquil responded that the purpose of the
statement was to form an independent union and to ac-
cept the 23-1/2 cent-and-hour wage increase and that if
Mine Workers was voted in the Company would have to
cease operations.
Respondents moved swiftly to implement their "agree-
ment." John Rocchio testified that around November 30
he was called at his home in the evening by Frank Cortez,
who requested Rocchio to meet him at Schiappa's home.
Rocchio complied, and there Schiappa gave him some 60
to 70 authorization cards for the Independent Union and
requested him to pass them out among the employees to
have them join the Independent. Though Shiappa denied
that testimony, Cortez who testified at some length, failed
to deny it. I credit Rocchio's testimony.
Rocchio testified further that, pursuant to Schiappa's
request and with the assistance of Forgays and Brittel, he
distributed the cards among the employees at three of the
mines around December 1 and ultimately obtained some
15 to 20 signatures. Though Rocchio passed out the cards
after quitting time, he was paid for the time he spent.
Thereafter Rocchio took the cards to the Company's of-
fice the same night and delivered them to Schiappa in the
presence of Cortez and Carapellotti. Neither of the two
later denied Rocchio's testimony and Schiappa gave in-
credible testimony that the cards mysteriously appeared
on his desk one morning. I credit Rocchio's testimony.
Concurrently with Rocchio's activities, Respondent's
supervisors were obtaining additional employee signa-
tures on other authorization cards for the Independent as
well as on copies of a further document by which the
signatories revoked any cards which they had signed for
Mine Workers. The latter document, which bore on each
copy the signature of one or more of the supervisors, also
recited the mid-September election of the employee
representatives and continued as follows:
That soon afterwards, an agreement was reached
between this committee and [the Company] as to
wages, bonuses, and pensions, all of which became
effective October 1, 1966, with the wages being
retroactive to April 1, 1966.
That we have been unable to reduce this agreement
to writing, and that we were in the process of reduc-
ing this agreement to writing when the Company
received notification from the N.L.R.B. for an elec-
tion on the United Mine Workers of America, which
we do not want.
Below the signatures appeared a jurat of a Notary
Public (either Carl Oprisch or Ethel Mahan) reciting that
the signatories acknowledged the signing as their free and
voluntary act and deed.
Herman White, Jr., testified that Foreman Anthony
Leo presented to him both the card and the revocation
statement on the job while he was working and that he
signed both and returned them to Leo.
Carl Yeager testified that he was called from the mine
to Foreman Dittrich's house across the road; there were
some 12 employees present; Dittrich passed out the
authorization cards and the revocation statement and told
the employees they were supposed to sign the forms; and
all of the employees did so. Yeager signed both docu-
ments and turned them back to Dittrich. Martin Skedel
signed the forms at the shop at the same mine after Dit-
trich explained to some 15 employees that signing the
small (authorization) card would be a step toward starting
an independent union, and that the larger document (the
revocation statement) would "abolish their signatures" or
whatever they signed with Mine Workers.
Testimony by Dittrich and by employee witnesses
called by Respondents and the Independent Union sub-
stantially confirmed the foregoing. August Desender,
Everett Walden, and Lloyd Boyer testified that they
signed the documents at the shop in Dittrich's presence.
' There was testimony by Desender , Lloyd Boyer, and Everett Walden but it was not until the November 25 meeting that Desender brought the
that the "idea" of an independent union was discussed as early as August subject up with representatives of management.
or September by Desender and Boyer and later by Desender and Walden,
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Desender testified that he was called to the shop to sign
something and that Dittrich told him to read the card and
to sign or not, as he pleased. Dittrich admitted that he
directed the night watchman to "spread the word around"
that a committee of the Independent Union had left some
papers with him and had asked him if he could get the em-
ployees together. Claiming ignorance at first as to how or
by whom the papers were placed in his home, Dittrich
finally designated Desender as the person at whose
behest he summoned the employees. Desender's
testimony, however, not only did not corroborate that
claim but was inconsistent with it. To the extent, there-
fore, that material conflicts exist concerning the events at
Dittrich's home and the shop, I credit the testimony of
Yeager, Skedel, and Desender.
Oldrich Novak, Pete Vein, August Santin, and Frank
Bartyzel testified that the revocation statement was
presented to them by Foreman Holderman in the
presence of Carl Oprisch. Novak inquired of Oprisch
who the Independent Union people were, but Oprisch
replied only that Novak should sign on a space which had
been left for him. Novak protested that his name should
not be on it because he was elected only to work on a
retirement plan, not on a committee for an independent
union. Oprisch insisted that Novak should sign the state-
ment on the line which had been left for him and he did so.
Bartyzel's testimony was corroborative of Novak.
Vein testified that he had gone to the shop to receive
his pay and that Holderman gave him the paper and told
him to read it and to sign if he wanted to. Vein asked what
the Independent Union was and Holderman told him "the
five names above" (who according to Vein's understand-
ing had been elected to serve as a pension committee at
the September meetings). Vein refused to sign because of
prior union membership. On the following day, however,
Holderman and Oprisch brought the statement back and
Vein signed it.
Santin testified that the statement was presented to him
by Holderman and Oprisch and that Holderman told him
to sign it if he agreed that the five men who were listed
would represent Santin in the Independent Union. Santin
signed. On the following day Tranquil inquired whether
Santin had signed the paper and Santin replied that he had
and asked what was to be done about it, Tranquil ex-
plained that there would be an independent union and that
once the Labor Board recognized it, it would be better
than the Mine Workers. Santin suggested there might be
a problem, but Tranquil stated there would not be one;
only a few employees were going with Mine Workers; the
Company could not afford to pay the royalty to Mine
Workers; and "[T]he job was going to be shut down and
you are going to be out of a job."
On the day following delivery to Schiappa of the signed
cards which Rocchio had obtained, Rocchio went with
some eight or nine committeemen to the company offices
and met with Schiappa and Cortez. Rocchio testified that
Schiappa and Cortez told the Committee to take the cards
to Attorney George Anetakis at Weirton, whom they
characterized as "a reasonable lawyer." Herman White,
Jr., testified similarly that it was either Cortez or Schiap-
6 White also testified that sometime before the meeting in Anetakis' of-
fice, he attended a meeting at Beechbottom, West Virginia, at which were
present employees from mine 58-B and the loading dock at Wellsburg and
that there were also present Schiappa, Cortez, Carapellotti, Dittnch,
Dooley, and Leo. Schiappa talked about the mining operation and stated
that he could not work "under the conditions of the United Mine
pa who suggested that the committee go to see Anetakis
about forming an independent union.6 Cortez himself
drove Rocchio and another employee to Weirdon and let
them out of his car in front of the building which housed
Anetakis' office.
Desender and Walden, called by the Independent
Union, admitted that the committee went to Anetakis' of-
fice following a meeting at the company offices at which
Schiappa was present and possibly Cortez. Walden
testified that he believed it was Forgays who suggested
they go to see Anetakis. Cortez and Schiappa, as Re-
spondents' witnesses, denied that they recommended
Anetakis to the committee or advised the committee to go
to Anetakis' office to organize an independent union. I
credit the contrary testimony of Rocchio and White.
The actual organization of the Independent Union took
place at a meeting of employees held at the bowling lanes
on December 7, with some 70 to 80 employees in at-
tendance. Anetakis and his associate, Leonard Tost, were
present but none of the company officials.7 A new com-
mittee was elected, replacing the old one, Albarano was
elected president, and a dollar was collected from each
employee.
Walden and Desender testified that thereafter the Inde-
pendent Union was incorporated, that meetings were held
by the committee every week in Anetakis' office, and that
the representation petition was prepared by Anetakis and
signed by the Independent's officers for mailing to the
Board. They denied that the Independent received any
financial assistance from the Company, denied that any-
one from the Company suggested or directed the forming
of a company union or the Independent," that any one
from the Company attempted to run the Independent or
to tell the committee how to run it, and testified that all
decisions for that union are made by the representatives
who were elected or appointed at the meeting on
December 7.
D. Respondents' Subsequent Conduct
Augusto Santin testified that Schiappa spoke at a meet-
ing of employees at mines nos. 85, 86, and 87 during the
first week in December, informing the employees that if
they would stay with him and agree with his plan, he
would try to make "a better stand" for wages but that if
the employees went with Mine Workers, he could not af-
ford to pay the royalty and the job would be shut down.
Cortez spoke further with Santin after the meeting, asking
whether Vitter (the Mine Workers' representative) had
been after Santin to sign a card and stating that Vitter had
gone to mine no. 43 every day and that "[I]f this is going
to keep up, they were going to close the job down." San-
tin's testimony was not denied.
Oldrich Novak testified that Schiappa and Cortez
spoke at a meeting of employees at mine 86 around mid-
December and that Schiappa suggested the employees
get into the Independent Union, stating that he would go
along with them in working out a scale on a contract.
Novak testified further that on a Sunday afternoon in the
last week of December, Schiappa and Cortez came to his
Workers."
7 Though Albarano testified that Schiappa, Carapellotti, and Cortez
were also present, the testimony of other witnesses is to the contrary
Rocchio, for example, testified that "[tlt was just ourselves," and that
though Schiappa walked in he was chased out.
8 I credit the testimony of Rocchio and White to the contrary
HUBERTA COAL CO. 129
home and informed him there was going to be a meeting
on Monday at the Company's offices and that Novak
should go to it and help to push along the Independent
Union to get it going. On Monday morning Cortez and
Dooley came by and asked why Novak was not at the
meeting, and Novak informed them he had no authority
to represent the men. Novak also testified to a number of
conversations with Tranquil during which Tranquil stated
repeatedly that ifthe employees did not "go Independent
Union," Mrs. Schiappa might transfer the Company to
someone else and the employees would all be out of work.
No denial was made of Novak's testimony.
Pete Vein testified that at the time Schiappa made the
bonus payment to him Schiappa stated that two compa-
nies in the immediate area had joined the Union, that he
did not know their reason for doing so and that if his own
employees joined the Union, the mine would be shut
down. Schiappa's testimony contained no denial of that
testimony.
Albarano testified that on January 2, 1967, he received
a call from Cortez informing him that Schiappa wished to
talk with him. Albarano went to Schiappa's home where
there were also present Cortez and Carapellotti. They
proceeded to discuss with him the subject of Mine Work-
ers, informing him they would not be able to function if
Mine Workers got in because they could not pay the
royalties. They did not ask him to do anything specifi-
cally, but told him they could not function under Mine
Workers.
Schiappa admitted the conversation, testifying that
what he said to Albarano (and to other employees occa-
sionally) was that if Mine Workers organized the em-
ployees, he did not see how the Company could afford an-
ticipated costs increases and "[T]herefore, we may be
forced out of business and when you are out of business,
the mines close down."
A Mine Workers meeting was held at the Fort Steuben
Hotel on the mezzanine floor on Sunday afternoon,
January 8. The evidence is undisputed that Schiappa and
Carapellotti were seen briefly in the lobby shortly before
the meeting began, and that Schiappa spoke to Augusto
Santin , remarking that the meeting was upstairs and that
he had nothing to do with it . Despite comments by the
Trial Examiner that a finding would be warranted that the
General Counsel's evidence did not establish surveil-
lance , Respondents' counsel proceeded (without moving
to dismiss) to offer testimony by Carapellotti and Schiap-
pa concerning their presence at the hotel which served to
shore up the weaknesses of the General Counsel's case
both on the point of knowledge of the meeting and on
intent. 9
Thus Schiappa admitted knowing before he went to the
hotel that a union meeting was to be held and testified that
he went there because, "It's a public place." Though any
one of a number of simple explanations might reasonably
have accounted for their presence despite knowledge of
the union meeting , Schiappa and Carapellotti went on to
offer further explanations which were wholly unconvinc-
ing. Carapellotti testified that he went there to watch a
professional football game on television and that he spent
some 1 , 2, or 3 hours doing so in a room which the bell-
boys had on the third or fourth floor. Carapellotti ad-
mitted, however, that he had two television sets at home
and that he left the hotel before the end of the game to
watch the remainder of it at home. Schiappa in turn was
able to draw a discreet veil over his own acts and to avoid
any searching cross-examination by intimating broadly
that he was engaged (whether with or without collobora-
tion of the bellhops was not disclosed ) in activities of a
most private type, corroboration of which could scarcely
be expected.
In view of Schiappa ' s prior knowledge of the union
meeting, of the timing of the visit to coincide with the
meeting, and the implausibility of the explanations which
Schiappa and Carapellotti gave for going to the hotel at
that time , I conclude and find that their purpose was to
observe the employees who were coming to, attend the
meeting. Alternatively I find further that in any event
their presence , without credible explanation , coupled
with Schiappa ' s volunteered remark to Santin , was in-
tended to create the impression of surveillance. National
Shirt Shops of Delaware, Inc., 123 NLRB 1213, 1218;
see N.L.R.B. v. Vermont American Furniture Corp., 182
F.2d 842 (C.A. 2); R. & J. Underwear Co. Inc., 101
NLRB 299.
There remain the following matters on which the
evidence is not in dispute:
Albarano was paid by the Company for the day on
which he attended the Board hearing on December 21.
Respondents issued to their employees shortly before
Christmas gift certificates in the sum of $ 5 in the name of
each child of school -age. Novak testified that Charles
Rokos suggested in a meeting that the Company hold a
Christmas party for employees with school age children
and that because there was not enough time to arrange for
such a party, Schiappa issued gift certificates as stated
above . Respondents sought to link its action to a July
meeting in which President Huberta Schiappa announced
her intention of making birthday gifts to school age chil-
dren . There was no evidence , however, that Respondents
carried out that promise and none that the employees
were informed that the Christmas certificates were being
issued in substitution for birthday presents.
Around December 1 Respondents granted a general
wage increase of 23-1/ 2 cents retroactive to October, pur-
suant to the statement in the "cooperation " agreement
(section C, supra) on which signatures were obtained
after the Mine Workers' demand.
E. General Credibility Questions
Though I have resolved in the preceding sections most
of the direct credibility conflicts on material and signifi-
cant points, there remain other conflicts created by
general denials which Respondents ' officials made of
much of the conduct with which they were charged. Thus
in answering questions which were frequently phrased in
the language of the complaint allegations Schiappa, Cor-
tez, and Carapellotti denied engaging in the conduct and
denied being present at any time when such conduct oc-
curred . Those denials included such allegations as threats
to close the mines, the promising of wage increases and
other benefits, the circulation of petitions and cards on
behalf of the Independent Union, and the contribution of
financial or other assistance to the Independent. Other
witnesses called by Respondents testified similarly that
" Respondents ' evidence is , of course , properly to be considered in
determining whether the preponderance of the evidence on the record as
a whole warrants a finding of surveillance See Sec . 10(c) and (e) of the
Act
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were not present at any time when Respondents' of-
ficials engaged in any such conduct.10
Such denials were singularly unimpressive in the light
of the cumulative testimony of the General Counsel's wit-
nesses concerning specific incidents and specific state-
ments, the failure by Respondents to deny significant and
substantial portions of the General Counsel's case, and
the failure of Respondents' officers to corroborate one
another, particularly as to Rocchio's testimony concern-
ing the authorization cards for the Independent Union.
As concerned threats to close the mines or to cease
operations, Respondents sought to refine such statements
to a prediction that Respondents would be unable to
operate economically under anticipated costs increases
if Mine Workers should come in and would be forced out
of business for that reason." Those refinements were
plainly not such as to be cognizable by a number of the
General Counsel's witnesses and, even more signifi-
cantly, they were not cognizable by Respondents' super-
visors who were not called to deny their own repetition of
unrefined threats that the mines would be closed and the
employees would be out of a job. Indeed, Cortez himself
made no denials of Santin's testimony that he himself
threatened that the job would be closed down if Vitter
kept going to mine no. 43.
It was also plain from all the evidence that Respond-
ents' supervisors, Leo, Dittrick, Tranquil, and Hol-
derman, were engaged in the same course of unlawful
conduct as Respondents' officers, for all were engaged in
circulating and in procuring signatures on documents on
behalf of the Independent and in renunciation of Mine
Workers.
In sum, for the foregoing reasons I do not credit the
denials of Schiappa, Carapellotti, and Cortez. The
testimony by employee witnesses called by Respondent
and the Independent that certain types of conduct did not
occur in their presence was also too general to be of
weight in refuting the testimony of the General Counsel's
witnesses as to specific incidents and specific statements.
F. Concluding Findings
I conclude and find that on September 13, 14, and 15
Respondents initiated, sponsored, formed, and promoted
the employee committee and that until on or about
December 1, Respondents assisted, dominated, and in-
terfered with the formation and administration of said
committee. It was plain from the evidence that the com-
mittee came into being as Respondents' creature and
owed its entire existence to Respondents. There was no
evidence that it functioned independently as an organiza-
tion representative of the employees even for the limited
purpose for which it was formed, and as some of the com-
mitteemen later objected, they were without authority to
represent the men otherwise.
It was also the committee members whom Respond-
ents hastily summoned on receipt of Mine Workers' de-
mand for recognition and from whom they took a signed
agreement to abstain from outside organization for a year.
Committee members Rocchio, Forgays, and Brittel were
also used by Respondents in procuring employee signa-
tures to authorization cards for the Independent Union
supplied by Respondents, and finally the committee's feet
were placed in the path to Anetakis' office. For practical
purposes the committee's existence, dominated
throughout by Respondents, ended at that point, and we
turn our attention to the Independent.
I conclude and find that beginning on November 25
Respondents initiated and sponsored the forming of the
Independent Union; they furnished authorization cards
to employees for use in forming the Independent; they
circulated through Supervisors Leo, Dittrich, Tranquil,
and Holderman and through employees Rocchio, For-
gays, and Brittel petitions and authorization cards on be-
half of the Independent; they dealt with the Independent
on matters relating to wages, hours of employment, and
other conditions of employment; and they assisted and
contributed financial and other support to said Independ-
ent. The contribution of financial support was plainly
evident in the payment of Rocchio for the time spent in
obtaining employee signatures, the payment to Albarano
for time spent as the Independent's representative at the
Board hearing, and the furnishing of the authorization
cards for the Independent.
The domination which Respondents had previously ex-
erted over the committee, however, ceased when the
committee members reached Anetakis' office. There was
no evidence that Anetakis was Respondents' lawyer or
was paid by them for any part of his fees or expenses, and
the General Counsel disclaimed any contention to the
contrary. Neither did the evidence establish that any of
Respondents' officials were present at the employee
meeting on December 7 at which the Independent Union
was formally organized and at which the employees
elected their new representatives, nor that Respondents
thenceforth dictated or directed the actions of the Inde-
pendent or of its officers. To the contrary the record
showed that it was Anetakis with whom the new
representatives met and who advised them in their course
of action. Thus so far as the record shows, no connection
was shown between Anetakis and the Company, save for
directing the committee to him, and there was no
evidence that Anetakis' representation of the Independ-
ent thereafter was other than bona fide.
I conclude and find further that by the following con-
duct Respondents interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in
Section 7 of the Act:
1. By threatening that they would shut down the mines
or cease operations if the employees selected Mine Work-
ers as their bargaining representative.
2. By circulating petitions and authorization cards on
behalf of the Independent Union and by circulating peti-
tions to cause employees to revoke authorization cards
signed for Mine Workers. Betts Baking Co. v. N.L.R.B.,
380 F.2d 199, 200 (C.A. 10).
3. By engaging in, or by creating the impression of en-
gaging in, surveillance of the Mine Workers meeting.
10 Lloyd Boyer, for example, denied that anyone from the Company
told him the Company would close down if he signed for Mine Workers or
did not sign an Independent Union card, and Desender denied that the
Company offered him any benefits to form an independent union and de-
nied having heard any company official make the statement the mines
would be closed if the employees joined Mine Workers
11 Respondents ' version may itself have constituted an unfair labor
practice, since in the context of the other unlawful conduct as herein
found, Schiappa 's statements, fairly understood , were not mere predic-
tions of possible economic consequences of unionization , but were threats
of economic loss to employees if Mine Workers were selected as bargain-
ing representative Crystal Tire Co., 165 NLRB 563, Wausau Steel
Corporation, l60 NLRB 635 enfd 377 F 2d 369,371 (C A 7); cf United
Fireworks Mfg Co, Inc v N L R B., 252 F 2d 428,430 (C.A 6).
HUBERTA COAL CO. 131
National Shirt Shops of Delaware Inc., 123 NLRB 1213.
4. By granting a wage increase and by the issuance of
Christmas gift certificates after receipt of Mine Workers'
demand for recognition and while its petition for an elec-
tion was pending N . L.R.B. v . Exchange Parts Company,
375 U .S. 405, 409-410 . The evidence did not establish
that Respondents reached prior to November 25 any
agreement with the committee concerning conversion of
the bonus . Both Schiappa 's announcement on November
14 and the "cooperation" agreement of November 25 be-
lied claims of a prior agreement . But even were the con-
trary assumed , such agreement would plainly have been
invalid on the score first that the committee ' s authority to
represent the employees was confined to the pension plan
and second , that in any case the committee throughout its
existence was unlawfully assisted and dominated by
Respondents.
I concluded and find further that by all of the aforesaid
unlawful conduct , which occurred before the election was
held on January 10, 1967, Respondents interfered with
the exercise of a free and untrammeled choice in the elec-
tion and deprived the employees of their right to express
a free choice . Leas & McVitty, Incorporated, 155 NLRB
389, 390-391, and cases there cited.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining , and coercing their
employees in the exercise of rights guaranteed in Section
7 of the Act, Respondents engaged in unfair labor prac-
tices proscribed by Section 8(a)(1).
2. By initiating , sponsoring , and forming the employee
committee and by assisting , dominating , and interfering
with the formation and administration of said committee,
Respondents engaged in unfair labor practices proscribed
by Section 8(a)(2) and (1) of the Act.
3. By initiating and sponsoring the forming of the In-
dependent Union and by contributing financial and other
support to it, Respondents assisted said Independent
Union and interfered with its formation and administra-
tion, thereby engaging in unfair labor practices within the
meaning of Section 8 (a)(2) and (1) of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
5. By engaging in the aforesaid unlawful conduct,
Respondents interfered with the free choice of the em-
ployees in the election.
THE REMEDY
Having found that Respondents engaged in certain un-
fair labor practices I shall recommend that they cease and
desist therefrom and that they take certain affirmative ac-
tion as ordered below , which I find to be necessary to
remedy and remove the effects of the unfair labor prac-
tices and to effectuate the policies of the Act.
It will be further recommended that the election held
on January 10, 1967 , be set aside and that Cases
8-RC-6544 and 8-RC-6559 be remanded to the Re-
gional Director for Region 8 for the purpose of conduct-
ing a new election at such time as he deems that circum-
stances permit the free choice of a bargaining representa-
tive . Leas & McVitty, supra.
Upon the foregoing findings of fact and conclusions of
law and the entire record , and pursuant to Section 10(c)
of the Act , I hereby issue the following:
RECOMMENDED ORDER
Huberta Coal Co., Inc ., and Hulierta Mining Co., Inc.,
their officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening employees that they will shut down
their mines or cease operations if the employees should
select Mine Workers as their bargaining representative.
(b) Circulating petitions and authorization cards
among the employees on behalf of the Independent
Union and circulating petitions to cause employees to
revoke authorization cards signed for Mine Workers or to
renounce representation by said Union.
(c) Engaging in, or creating the impression of being en-
gaged in , surveillance of meetings held by Mine Workers.
(d) Granting wage increases , issuing Christmas gift
certificates , or granting or promising benefits of any kind
in order to cause employees to abandon or repudiate their
union activities , sympathies , and/or membership.
(e) Initiating , sponsoring , or forming any employee
committee or assisting , dominating , or interfering with the
formation or administration of any such committee, or
contributing financial or other support to it.
(f) Initiating or sponsoring the forming of the Independ-
ent Union , interfering with the formation or administra-
tion of said Union , or assisting it by contributing financial
or other support.
(g) In any other manner interfering with, restraining,
or coercing their employees in the exercise of their right
to self-organization , to form , join , or assist said United
Mine Workers of America , District 6, or any other labor
organization , to bargain collectively through representa-
tives of their own choosing or engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities except to the extent that such right may be af-
fected by an agreement requiring membership in a labor
organization as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action:
(a) Withdraw and withhold all recognition from, and
completely disestablish , the employee committee, or any
successor thereto , as the representative of their em-
ployees for the purposes of collective bargaining.
(b) Withdraw and withhold any further recognition
from Strip Miners Independent Union of Steubenville,
Ohio , as the representative of their employees for the pur-
poses of collective bargaining unless and until said union
shall have been duly certified by the National Labor
Relations Board as the exclusive representative of such
employees.
(c) Post at their offices and at each of their mines in
Ohio and West Virginia, copies of the attached notice
marked "Appendix." 12 Copies of said notice, to be
furnished by the Regional Director for Region 8, after
12 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
336-845 0 - 70 - 10
132 DECISIONS OF NATIONAL
being duly signed by Respondents' representative, shall
be posted by them immediately upon receipt thereof, and
be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to their employees are customarily posted.
Reasonable steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.13
IT IS FURTHER RECOMMENDED that the election held on
January 10, 1967, among Respondents' employees be set
aside and that Cases 8-RC-6544 and 8-RC-6559 be re-
manded to the Regional Director for Region 8 for the pur-
pose of conducting a new election at such time as he
deems appropriate.
13 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 8, in writing, within 10 days from the date of this Order, what steps
Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
On charges filed by United Mine Workers of America,
District #6, the Board issued a complaint and held a trial
on May 9, 10, and 11, 1967, at which all parties presented
their evidence. The Board has found that we unlawfully
assisted and dominated the employee committee, unlaw-
fully sponsored and assisted Strip Miners Independent
Union of Steubenville, Ohio, and unlawfully interfered
with, restrained, and coerced our employees in the exer-
cise of rights guaranteed by the Act.
We are posting this notice as required by the Board to
inform you that we promise not to engage in further un-
lawful conduct and specifically that we promise to do the
following:
WE WILL NOT threaten to close down our mines or
to cease operations if you should select United Mine
Workers, District #6, as your bargaining representa-
tive.
WE WILL NOT circulate petitions or authorization
cards on behalf of Strip Miners Independent Union
of Steubenville, Ohio, or circulate petitions to cause
you to revoke authorization cards signed for said
United Mine Workers of America.
WE WILL NOT engage in or create the impression
LABOR RELATIONS BOARD
that we are engaging in surveillance of the meetings
or other organizational activities of United Mine
Workers of America.
WE WILL NOT grant wage increases, issue Christ-
mas gift certificates, or grant or promise benefits of
any other kind in order to cause you to abandon or
repudiate your union activities, sympathies, and/or
membership.
WE WILL NOT initiate, sponsor, or form any em-
ployee committee or assist, dominate, or interfere
with the formation or administration of any such
committee or contribute financial or other support to
it.
WE WILL NOT initiate or sponsor the forming of
Strip Miners Independent Union of Steubenville,
Ohio, interfere with its formation or administration,
or assist it by contributing financial or other support
WE WILL respect your rights to self-organization,
to form, join, or assist United Mine Workers of
America, or any other labor organization, to bargain
collectively in respect to terms and conditions of em-
ployment through said Union or any representative
of your own choosing and WE WILL NOT interfere
with, restrain, or coerce you in the exercise of those
rights.
WE HEREBY withdraw and withhold all recognition
from and completely disestablish the employee com-
mittee, or any successor thereto, as the representa-
tive of our employees for the purposes of collective
bargaining.
WE WILL withdraw and withhold any further
recognition from Strip Miners Independent Union of
Steubenville, Ohio, as the representative of our em-
ployees for the purposes of collective bargaining un-
less and until said Union shall have been certified by
the National Labor Relations Board as the exclusive
representative of our employees.
You and all our employees are free to become mem-
bers, or to refrain from becoming members, of any labor
organization except to the extent that your right may be
affected by an agreement requiring membership in a labor
organization as authorized in Section 8(a)(3) of the Act.
HUBERTA COAL Co , INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio 44115,
Telephone 621-4465.