IMAC Energy

National Labor Relations Board - Board Decisions

Nov 27, 1991

305 N.L.R.B. 728 (N.L.R.B. 1991)

728
305 NLRB No. 91
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We deny the Respondent’s motion to reopen the record for the
purpose of attacking the credibility of witnesses at the hearing. See
Kenai Helicopters, 235 NLRB 931 (1978). Moreover, we note that
the affidavit proffered by the Respondent relates to prehearing events
and was given by an individual who was a witness at the hearing.
In any event, the proffered evidence would be insufficient to prove
the Respondent’s claim that discriminatee David Threlkeld fabricated
evidence to support his testimony.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
IMAC Energy and United Mine Workers of Amer-
ica. Cases 10–CA–24730 and 10–CA–24906
November 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 17, 1991, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
Respondent filed exceptions, a supporting brief, and a
motion to reopen the record. The General Counsel and
the Charging Party filed oppositions to the motion.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record1 in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, IMAC Energy, Brilliant,
Alabama, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Mary Bulls, Esq., for the General Counsel.
Sydney F. Frazier Jr., Esq., of Birmingham, Alabama, for
the Respondent.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge. This
hearing was held in Birmingham, Alabama, on November 8
and 19 and on December 17, 1990. The charge in Case 10–
CA–24730 was filed on April 25 and amended on May 24,
1990. The charge in Case 10–CA–24906 was filed on August
21 and amended on September 27, 1990.
The order consolidating cases and amended complaint
issued on October 3 and was amended on November 8, 1990.
The complaint alleges that Respondent engaged in several
acts in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act (Act).
I make the following findings on the basis of the entire
record, my observation of the demeanor of witnesses, and
after consideration of briefs filed by Respondent and General
Counsel.
Respondent admitted that it is an Alabama corporation en-
gaged in the production of coal with places of business in
Brilliant and Natural Bridge, Alabama; that during a rep-
resentative 1-year period it sold and shipped from its Ala-
bama facilities goods valued in excess of $50,000 directly to
customers outside Alabama; and that it is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
Respondent admitted that the Charging Party, United Mine
Workers of America (UMW) is, and has been at material
times, a labor organization within the meaning of Section
2(5) of the Act.
This matter involves a surface mining pit at Brilliant, Ala-
bama, known as Black Creek. Approximately 25 employees
worked for Respondent at Black Creek on two 10-hour
shifts. They were supervised by Superintendent T. J. Rob-
bins. Respondent’s owners, Jack Maturo and President Tim
McCoy, were over Robbins. Maturo routinely visited the
mine while McCoy did not routinely appear there.
There was evidence of some union activity at Black Creek
from August 1989. A union organizing campaign involving
United Mine Workers actually started in February 1990 and
included an election which the Union lost on April 27, 1990.
General Counsel alleged that Respondent engaged in ille-
gal activity by discharging one employee, interrogating and
threatening employees, soliciting names of employees that
were supporting the Union, laying off several employees on
March 30, 1990, and refusing to reinstate several of those
laid-off employees, because of its employees’ union activi-
ties.
I. THE 8(a)(1) ALLEGATIONS
A. Superintendent T. J. Robbins
1. Interrogation
Former employee David Threlkeld testified about a March
19, 1990 conversation he had with Superintendent T. J. Rob-
bins:
[Robbins] come up to the drill where I was drilling
and motioned me to get out of the drill and come get
in the truck with him. I done so. And he asked me had
I heard anything about an organizing effort, and I told
him just rumors.
He said, ‘‘Well, I’ve heard that 70 percent of the
evening shift at Black Creek has already signed cards.’’
And he went on to say that Tim said he would get
a list of the names of the card signers and he would
shut down and reopen and there wouldn’t be a card
signer working at the new pit.
And then he said that Tim would be having a talk
with us in the very near future about it.
. . . .
I asked him about Joe Fuller.
. . . .
729IMAC ENERGY
I told him I’d heard Joe Fuller had got fired for the
organizing effort. And he told me that. Said that he
had.
. . . .
He said he fired him for stirring up union business—
or union organizing.
2. Told discharge was because of union activities
Former second-shift employee Jerry Bickerton talked with
Respondent’s superintendent T. J. Robbins shortly after Joe
Fuller was discharged:
I asked [Robbins] about Joe and everything. You know,
he’d been working and out several days and he was
back. They said he’d just got fired and I was asking
him. He told me Joe had started some union trouble,
you know, back sometime earlier and they thought they
got it straightened out, and he was pushing the union
again and they just couldn’t have that. Couldn’t put up
with it.
As shown above, David Threlkeld testified about a March
19, 1990 conversation he had with T. J. Robbins:
I told him I’d heard Joe Fuller had got fired for the
organizing effort. And he told me that. Said that he
had.
. . . .
He said he fired him for stirring up union business—
or union organizing.
3. Threatened to close and move mine
As quoted above under the interrogation and threat of dis-
charge sections of this decision, David Threlkeld testified
about a March 19, 1990 conversation he had with T. J. Rob-
bins:
[Robbins] said, ‘‘Well, I’ve heard that 70 percent of
the evening shift at Black Creek has already signed
cards.’’
And he went on to say that Tim said he would get
a list of the names of the card signers and he would
shut down and reopen and there wouldn’t be a card
signer working at the new pit.
T. J. Robbins denied making the above statements.
I find that the testimony of T. J. Robbins was not cred-
ible. Robbins denied that he heard anything about the Union
between the picketing over the Pittston strike during the sum-
mer of 1989 and the filing of the petition by Respondent’s
employees in April 1991. That testimony is incredible in
view of the entire record including the testimony of Re-
spondent’s owners Tim McCoy and Jack Maturo. The em-
ployees were being contacted by UMW and they were dis-
cussing organizing from a time during the Pittston strike
through the time of the UMW organizing campaign during
the spring of 1990. The union talk even generated comments
about the Union during a speech by Tim McCoy to the em-
ployees on March 21, 1990.
As to the testimony of Bickerton and Threlkeld, I was im-
pressed with the demeanor of both. To a large extent both
Bickerton and Threlkeld were corroborated by other testi-
mony.
There was evidence which called Threlkeld’s testimony
into question. During his earliest prehearing affidavit to the
National Labor Relations Board (Board or NLRB), Threlkeld
did not include any reference to comments by Robbins about
70 percent of the second shift signing union cards. That was
included in a subsequent affidavit after Threlkeld was admit-
tedly interviewed by the union representative about the
strength of the Union’s evidence regarding the March 30 lay-
off.
Reference to the rumor comment by Robbins was included
in Threlkeld’s diary as the last comment under March 19 in
the diary and that comment could have been added at a later
date without disturbing anything else in the diary. However,
it is not evident from an examination of the diary that the
comment was added later. The note dated 3–19–90 in
Threlkeld’s diary reads:
T.J. came up to drill. Asked me had I heard about
union making effort to organize. T.J. said Tim M. said
he would not operate a union mine. Tim said that if it
came to vote he would get a list of names that signed
cards and he would shut down and then when he
opened up somewhere else that there would be none of
the card signers at that mine. I asked TJ had he heard
that Joe Fuller was fired for that reason and he said that
was what had happened. He said Jack said that Joe got
all the union mess started. TJ told me Tim was going
to have a talk with us about the union. He said rumor
was 70% of 2nd shift had signed cards.
Threlkeld’s testimony regarding his interview with the
union representative was corroborated. UMW Representative
Sidney Hill testified that in an interview with Threlkeld he
saw Threlkeld’s notebook which included a statement that
T. J. Robbins said there was a rumor that 70 percent of the
second shift had signed union cards.
Respondent pointed out the significance of Sidney Hill’s
testimony in arguing that Threlkeld and Hill collaborated in
producing that additional evidence in support of the Union’s
claim that the layoff was illegal. The record does show that
in order for Threlkeld’s diary to contain fabrication made
during or after his interview with Hill, Hill would have to
have been aware of that fabrication.
In fact such a collaboration would have included more
than Hill and Threlkeld. The meeting in which the 70-percent
comment was allegedly discovered was also attended by Ed
Fair, Jerry Bickerton, and Joe Fuller. If there had been col-
laboration it would have had to include those five people. I
cannot find such collaboration absent some evidence.
The evidence does not support a finding that there was
collaboration to falsify evidence. Only Hill and Threlkeld
were asked about that meeting but the others named were
available at the hearing and testified about other matters.
Hill’s and Threlkeld’s testimony were similar. Neither said
anything which demonstrated collusion to falsify evidence.
Respondent also argued that Threlkeld’s testimony should
be discredited because his original affidavit did not include
any evidence of illegal motivation for the layoff of the sec-
ond shift.
Actually Threlkeld’s original affidavit included all the
matters from his diary notebook regarding his March 19 con-
versation with Robbins other than the alleged comments by
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Robbins about 70 percent of the second shift. Threlkeld’s
original affidavit included several matters which, if credited,
illustrate union animus including an alleged comment by
Robbins that Tim McCoy would shut Black Creek down.
That comment is relevant to the question of illegal motiva-
tion even though there was no direct connection made to the
second shift.
Here the testimony of Threlkeld conflicts with the testi-
mony of only one other witness. That particular witness dem-
onstrated that his testimony was unreliable. I cannot credit
the testimony of T. J. Robbins because, among other rea-
sons, it appears to conflict with testimony of Co-owner Tim
McCoy as well as that of Co-owner Jack Maturo.
McCoy was not regularly at the Black Creek pit. Robbins
was there every day supervising the mine even though he did
not remain throughout the second shift. McCoy admitted that
he was aware that the Black Creek employees were involved
in activities by UMW from the summer of 1989 through the
NLRB election in April 1990. Robbins, on the other hand,
testified that he had no knowledge of any union activity until
the petition was filed with the NLRB in April 1990.
The record also shows that Robbins had several conversa-
tions with employees regarding UMW. Robbins admitted
talking with Bickerton and Threlkeld about the Union even
though he denied knowing the employees were engaged in
union activity.
In view of the record I am convinced that Robbins’ testi-
mony is unreliable. Due to that finding I am unable to use
the fact that there are conflicts between Robbins, on the one
hand, and Bickerton and Threlkeld on the other, as evidence
which tends to call Bickerton’s and Threlkeld’s testimony
into question.
As shown above, Threlkeld’s failure to include Robbins’
alleged comments about 70 percent of the second shift sign-
ing union cards, did call Threlkeld’s testimony into question,
but I find those questions failed to prove unreliability.
I am convinced that Threlkeld testified truthfully despite
his failure to include the 70-percent comment by Robbins in
his original affidavit. Therefore I shall credit the testimony
of Threlkeld and Jerry Bickerton and, to the extent their tes-
timony conflicts, discredit the testimony of T. J. Robbins.
The credited evidence proved that Robbins interrogated
David Threlkeld about the employees’ union activities
(Krona 60 Minute Photo, 277 NLRB 867 (1985); Rossmore
House, 269 NLRB 1176 (1984); O. K. Trucking Co., 298
NLRB 804 (1990)); he told Bickerton and Threlkeld that Joe
Fuller had been discharged because of union activities (Ar-
mour Con-Agra, 291 NLRB 962 (1988)); and he threatened
Threlkeld that Respondent would shut down then reopen the
mine and get rid of cardsigners (Maremont Corp., 294
NLRB 11 (1989); Telex Communications, 294 NLRB 1136
(1989); Marshalltown Trowell Co., 293 NLRB 693 (1989)).
Those actions constitute violations of Section 8(a)(1) of the
Act.
B. Part Owner Jack Maturo
1. Interrogation and threat of futility
Jerry Bickerton testified that he talked with Part Owner
Jack Maturo about 2 weeks before the March 30, 1990 lay-
off:
A. [Maturo] was asking me did I know who was
pushing the union; who was trying to get cards signed,
and all that. And had I heard about the union talk and
everything.
I told him, ‘‘Yes. In a non-union pit you’re gonna
have union talk.’’
And he wanted to know if I’d help him try to find
out who was stirring up union talk and everything.
Q. What did you tell him?
A. I told him I’d just do what I could and that was
it ’cause there hadn’t been nobody pushing it on me or
nothing like that.
Q. Do you recall anything else Mr. Maturo said dur-
ing that conversation about the union?
A. Well, he just let me know we had been non-union
and that was the way he wanted to keep it. That we
wasn’t gonna have no union. It was being run non-
union and that’s the way it was gonna stay.
. . . .
Well, we’d just been told it wouldn’t go union. That
they had had that problem before and solved it and they
would solve it again. We just wouldn’t be union.
Former employee Jerry Humphres testified that Jack
Maturo approached him a time or two while he was working
in the Black Creek pit and asked him if anybody had ap-
proached him with a checkoff card.
Jack Maturo admitted asking Jerry Bickerton if the union
talk was slowing down production. Maturo denied asking
anyone about a list of employees pushing the Union.
2. Solicited names of employees supporting Union
As shown above Jerry Bickerton was questioned by Jack
Maturo about 2 weeks before the March 30 layoff. Maturo
asked for Bickerton’s help to find out who was stirring up
union talk.
I find that both Bickerton and Humphres testified truth-
fully about their conversations with Maturo regarding the
Union. Bickerton and Humphres were impressive in their de-
meanor. Their testimony demonstrates interrogation which is
violative of Section 8(a)(1) of the Act. The comments made
by Maturo illustrate that he was inquiring about union activi-
ties out of concern with union organization rather than, as he
testified, out of concern over production. Neither Bickerton
nor Humphres were known union advocates at the time of
their conversations with Maturo. Kona 60 Minute Photo, 277
NLRB 867 (1985); Rossmore House, 269 NLRB 1176
(1984); Tom’s Foods, 287 NLRB 645 (1987).
Bickerton’s credited testimony proved that Respondent
through its part owner Jack Maturo, solicited its employee to
supply it with names of those employees that were helping
the Union, in violation of Section 8(a)(1). O. K. Trucking
Co., 298 NLRB 804 (1990); Honeycomb Plastics Corp., 279
NLRB 413, 420, 425 (1988). Bickerton’s testimony also
shows that by telling its employee that Respondent was non-
union and that was the way it would stay, Maturo threatened
that it would be futile for the employees to select the Union.
F. & P. Meat Co., 296 NLRB 759 (1989); Dorothy Sham-
rock Coal Co., 279 NLRB 1298 (1986); Cannon Industries,
291 NLRB 632 (1988).
731IMAC ENERGY
C. Part Owner and President Tim McCoy
The record illustrated that Respondent President Tim
McCoy addressed the employees on March 21, 1990.
Jerry Humphres testified that the main thing he recalled of
the address by Tim McCoy was that if ‘‘we couldn’t work
there without the union that [McCoy] would write us a rec-
ommendation and the gate was open to leave.’’
According to Jerry Bickerton, Tim McCoy called a meet-
ing of employees on March 21, 1990. Bickerton recalled that
as only the second such meeting ever called by McCoy.
McCoy told the employees that he had heard talk about a
union and that he was opposed to the Union. McCoy told the
employees that if they weren’t satisfied with the way it was
that the ‘‘gate was open.’’
David Threlkeld recalled that Tim McCoy told the em-
ployees during his March 21 speech that he wished that who-
ever was behind the union organizing would just leave and
not tell McCoy anything about it. McCoy said that he would
give that employee a job reference.
Edward Fair recalled McCoy telling the employees that
Black Creek was a nonunion pit, it was gonna continue being
nonunion and if the employees could not work nonunion they
could leave and maybe find a better job.
In determining credibility I note the following testimony
regarding McCoy’s March 21 talk with the employees:
Tim McCoy testified:
[I]n the past we felt like we’d worked through the
pickets and crossed picket lines and we’d worked a lot
of folks that cared about the jobs that they had at
IMAC Energy. They cared enough about them to take
intimidation and threats and come to work to save the
company. And that we were at a point now that we’ve
got to save the company.
. . . .
. . . anyone that works for us, that helps us, we
want to help them. And if they can get a better job, I’d
like to see them do better because that’s the way we
would want them to treat us. And we’ve done that for
ten years.
I made the statement that if anyone was unhappy,
didn’t like the situation—like I just said, didn’t like me
or Jack—and they didn’t want to come talk to us, or
talk about it or complain, that I would do what I could
do to help them find a better job.
I want to tell everyone here what me and Jack’s po-
sition is on an issue. And the issue is that we are not
in the union, and we are not desirous to be in the
union, and it is our desire to continue to operate this
company non-union like we have for the past ten years.
. . . that to operate under a union contract would
cost this company significantly more than it does the
way we operate today. And that if I had to add this cost
to our products, the likelihood of selling them would be
extremely low.
T. J. Robbins testified in response to whether McCoy said
anything about the UMW:
I remember [McCoy] saying something to the effect
that him and Jack has always been non-union and they
could not afford to be union with the market of coal
they was selling.
Jack Maturo recalled McCoy started the talk with the fi-
nancial condition of the mine. Later during his talk,
[McCoy] brought up the fact there was a lot of talk
going on as far as unhappy people.
Which there was a lot of talk. Because we had given
raises the first of March and there were a lot of people
who figured they deserved twice and three times what
they got. There was a lot of people unhappy with what
they received in the raise instead of being thankful for
a raise.
And his statement then regarding those people who
had made statements about being unhappy was that as
far as he was concerned, those that were not happy,
those that were not content with their jobs, the best
thing they could do is find other employment.
Because it was probably the worst time we had ever
had for giving a raise and being condemned at the same
time.
As examination of the above evidence shows that most of
the witnesses had similar recall of the March 21 address. As
shown above I found Jerry Bickerton and David Threlkeld
were credible witnesses. Their testimony along with the testi-
mony of Jerry Humphres and Edward Fair showed that
McCoy told his employees that he would prefer they find
other employment if they wanted the Union and that he
would assist them in finding other employment. The above
evidence shows that the testimony of Bickerton, Threlkeld,
Humphres, and Fair is somewhat similar to that of McCoy,
Robbins, and Maturo. Maturo testified that the unhappiness
expressed by the employees stemmed from their dissatisfac-
tion with a recent pay increase. However, McCoy’s testi-
mony revealed that although he spoke about employee un-
happiness, he did not couple that unhappiness to any par-
ticular subject. McCoy admitted that he also talked about the
employees’ union campaign.
I credit the testimony of Bickerton, Threlkeld, Humphres,
and Fair. I find that evidence proved that Tim McCoy told
his employees that he would help them find other work if
they wanted the Union. That constitutes a violation of Sec-
tion 8(a)(1) of the Act. J. & G. Wall Baking Co., 272 NLRB
1008, 1011 (1984).
II. THE 8(a)(3) ALLEGATIONS
A. The Discharge of Joe Fuller
Joe Fuller worked for Respondent at their Black Creek
Mine from May 16, 1989, until his discharge in March 1990.
Fuller was a rock truckdriver on the first (day) shift. A week
before his discharge he was given a 25-cent pay raise which
brought his pay to $7.75 per hour.
Fuller engaged in union activity from around August 1989
when he was approached by a man from another employer
on behalf of the United Mine Workers of America. From that
time Fuller talked to employees and solicited some to sign
union cards. He also obtained, and supplied the Union with,
a list of employees from Black Creek which had been pre-
pared by his supervisor Bruce Cornelius. After hearing a
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rumor that he was going to be fired Fuller stopped his union
activity around December 1989.
David Threlkeld testified that shortly before the hunting
season started on November 20, 1989, Superintendent T. J.
Robbins asked him if he knew anyone that was interested in
a job driving a rock truck. Robbins said they had two union
troublemakers, Joe Fuller and Greg Burns, as rock truck-
drivers and that they were going to get rid of both of them.
Beginning in January 1990, Fuller talked with employee
David Threlkeld about the Union. Fuller and Threlkeld met
with Tom Wilson from the Union at a cafe. After that Fuller
talked to some employees about the Union on the job. He
also solicited some employees to sign union cards but all his
solicitation occurred off the job.
Fuller was called into the office by Part Owner Jack
Maturo. Maturo told Fuller that he was an inefficient driver
and that, instead of firing Fuller, he was going to lay him
off so that Fuller could ‘‘draw your pennies.’’
Fuller was never disciplined because of his work before
his termination.
As shown above under the 8(a)(1) caption, Jerry Bickerton
testified that Superintendent Robbins told him that Fuller had
been discharged because Fuller started some union trouble.
David Threlkeld testified (see above) that T. J. Robbins re-
sponded to him on March 19 that Fuller had been fired be-
cause of Fuller’s union organizing activities.
Findings: The credited evidence illustrated that Fuller was
discharged because of his union activities. The evidence
showed that Respondent knew of Fuller’s union activities
from before November 1989. According to Fuller he tempo-
rarily stopped his union activities out of fear of discharge
during December 1989. Fuller was discharge shortly after he
renewed union activities in early 1990. Two employees were
told by Respondent’s superintendent that Fuller had been
fired because of his union activities. T. J. Robbins told Jerry
Bickerton that Respondent felt it had straightened out Fuller
but that he was pushing the union again. I find that General
Counsel proved a prima facie case of discharge.
I also find that Respondent failed to show that Fuller
would have been discharged in the absence of protected ac-
tivities.
Respondent’s supervision was unable to settle on a spe-
cific cause for Fuller’s discharge. Although Superintendent
Robbins testified that Fuller was unable to handle any of the
jobs he was assigned, Co-owner Maturo testified that Fuller
was a good rock truckdriver but was inconsistent.
There was a dispute in the evidence regarding whether
Fuller was ever disciplined because of his work. It is not dis-
puted that Fuller never received a written warning. Respond-
ent contends that he was orally warned about his work on
numerous occasions. Fuller testified that he only told on oc-
casion that he needed to speed up.
It was Respondent’s policy to give three warnings before
discharge. The record shows that Fuller was never told that
he had received three warnings.
Bruce Cornelius, the leadman that directed Fuller’s work,
testified as to only one occasion that he felt he reprimanded
Fuller:
Q. Well, were you ever critical of [Fuller’s] perform-
ance to him directly?
A. One time that I really got onto him like you
would say it was really a reprimand.
Immediately before Fuller’s discharge he was awarded a
25-cent-per-hour increase in pay. According to Maturo he
gave that wage increase because he had promised a pay in-
crease to the employees. All the employees did receive a pay
increase of at least 25 cents at that time. Nevertheless, no
convincing reason was given as to why Fuller received a pay
increase a week before his discharge.
The record proves that Respondent’s supervisors gave
slightly different reasons for Fuller’s discharge; Fuller was
granted a 25-cent raise during the week before his discharge;
the evidence failed to show that Fuller received three rep-
rimands before his discharge; Respondent’s superintendent
expressed an intent to discharge Fuller in November because
of his union activities shortly before Fuller temporarily
stopped his union activities; Respondent’s superintendent told
two employees that Fuller had been discharged because of
his union activities after Fuller renewed those activities; and
Fuller was discharged at a the very time that the union orga-
nizing had picked up.
In view of the full record including especially the above
factors, I find that the record failed to show that Fuller
would have been discharged in the absence of his protected
activities. (Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983); Delta Gas, 283 NLRB 391 (1987), enfd. 840 F.2d
309 (5th Cir. 1988); Southwire Co. v. NLRB, 820 F.2d 453
(D.C. Cir. 1987); Barnard Engineering Co., 295 NLRB 226
(1989)).
B. The Layoff
On March 30, 1990, Respondent laid off eight employees
from its second shift at the Black Creek Mine. Charles Alex-
ander, Jerry Bickerton, Ed Fair, William Gray, Jerry
Humphres, Titus Smith, and David Threlkeld were laid off
on that occasion. Billy Linley was also laid off but Linley
was recalled in May 1990. The second (night) shift included
a total of 11 employees.
During the hearing five witnesses testified that they were
involved in a March 30 layoff of Respondent’s second shift
at the Black Creek Mine. Jerry Bickerton was dozer operator
and leadman on the second shift. Bickerton testified that he
was phoned by Jack Maturo on March 30. Maturo told
Bickerton that ‘‘he was laying off the night shift because the
coal had gotten too deep, the cover was too steep, too much
material on top of the coal.’’ Maturo went on according to
Bickerton, saying that ‘‘they were supposed to get permits
for some new land; that it would take about two months
when we’d be back working like normal.’’
Despite Maturo’s comments that the second shift was
being laid off and his comments about being back to normal
in about 2 months, Bickerton, as well as David Threlkeld,
William Gray, Jerry Humphres, and Edward Fair, was ad-
vised by letter dated March 31 that he had been terminated
and should seek permanent employment elsewhere.
Under examination by General Counsel as an adverse wit-
ness Respondent’s president Tim McCoy testified that he
made the final decision to lay off employees. According to
McCoy he started considering that possibility a few weeks
733IMAC ENERGY
before, and made the final decision a few days before, March
30. McCoy made the decision to lay off because Respondent
was not producing enough coal to meet the next payroll.
McCoy testified that Black Creek was the only IMAC mine
at that time.
According to McCoy he ran into production problems
when he encountered some areas where there had been pre-
vious underground mining.
Although Respondent checked the area with test holes
when it originally decided to mine Black Creek it did not
learn that the previous underground mining had been exten-
sive. According to McCoy, he discovered by more explor-
atory drill holes that the Black Creek operations were getting
into a more extensive previously mined area about a month
before the operations actually reached that problem. Due to
the lag time inherent in such things as securing available
lease lands and the requirement of permits from the Alabama
Surface Mining Commission, Respondent had to continue
working the same area for about 6 months before they could
move into other mining areas.
At the same time Respondent encountered the underground
mined area on one side of the Black Creek pit, it was en-
countering an extensive overburden of as much as 125 feet
on the other side. According to McCoy he was mining a 26-
inch seam below that extensive overburden. McCoy testified
that those two problems, the underground mined area and the
overburden, caused the production to drop to the point where
he could not continue to meet his payroll.
According to McCoy the production in March 1990 was
probably 60 to 75 percent of what production should have
been and Respondent had to buy coal from other mines to
maintain sales and customers. Respondent lost one customer
because of that problem.
Respondent offered documentation as follows regarding
productions in tons of coal, at the Black Creek mine:
October 1989 12,535
November 1989 13,166
December 1989 13,210
January 1990 14,364
February 1990 11,875
March 1990 10,917
April 1990 8,570
May 1990 9,068
June 1990 8,895
July 1990 9,272
August 1990 15,578
September 1990 12,734
McCoy testified that he took action to generate more rev-
enue by applying for a permit revision and that he took ac-
tion to stem the flow of money out of the mine by laying
off the second shift.
McCoy applied for a permit revision with the Alabama
Surface Mining Commission which would allow Respondent
to mine in other more productive areas than the one mined
at the time of the layoff. McCoy was able to apply for a per-
mit in an increment of the Black Creek area where he had
a lease and to also seek to lease some other land. McCoy
testified that the permit revision did not come through until
May 1990.
Subsequently during the hearing McCoy gave a different
light on why he felt Respondent’s production of coal at
Black Creek fell off during February and March. Under
cross-examination by General Counsel after being recalled to
the stand as Respondent’s first witness, McCoy testified as
follows:
Q. Well, what do you think happened then with re-
spect to—you have the months of October through Jan-
uary, 1990. From October, ’89 on your tonnage. Are
you attributing that decrease in February and March to
the fact that second shift was just kind of doing things
their own way?
A. For the most part. Uh-huh.
Q. The coal was there and available to be mined?
A. Oh, yeah.
McCoy had testified that shortly before the layoff he had
discovered that the second shift was not being productive due
to poor work practices. Superintendent T. J. Robbins sup-
ported McCoy through records he maintained from January
26 showing the first shift was more productive than the sec-
ond during that time period before the layoff. According to
Robbins he produced those records by marking and walking
off the wall of overburden before each shift. His measure-
ments tended to show the amount of overburden removed by
each respective shift.
Jack Maturo testified that he talked to Jerry Bickerton
about the productivity of the second shift during March
1990. According to Maturo at that time the second shift
‘‘was not meeting up to standards, and had not been meeting
up to standards for quite some time.’’ Maturo testified that
among other things, he asked Bickerton if ‘‘the union talk
also being a problem slowing down production, slowing
down our advancement?’’
Jerry Bickerton who as shown above, disagreed with
Maturo as to the slant of their March conversation, agreed
that the overburden at the Black Creek Mine was running
from 40 to 120 feet at the time of the layoff. That had
caused production to go down. He also agreed that the sec-
ond shift should be more productive than the first because
of some nonproductive duties such as road building which
were handled by the first shift. Bickerton was not aware if
the first shift was more productive that the second before the
layoff. He was aware that Respondent was marking the high
wall to determine productivity on each shift during the time
before the layoff. Bickerton testified that Respondent started
marking the high wall to determine shift production some 2
or 3 months before the layoff.
Bickerton stated however that Respondent did not regu-
larly mark the high wall and that as much as 3 weeks might
pass between times when the high wall was marked.
David Threlkeld testified that he was working on the aver-
age of 50 hours per week during the year before the layoff.
Threlkeld recalled that the overburden was deeper on one
end of the pit than on the other and that it was around 130
feet on the deeper end.
According to Threlkeld they were moving quite a bit of
coal at the layoff but they were having to go deep for it and
they had hit some old mine works. Threlkeld explained that
when you hit old mine works that means you have taken off
the overburden for nothing because the coal has already been
removed.
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jerry Humphres testified that before the layoff he was
working alternating 2-week periods with one 2-week period
of 50 hours per week then the next 2-week period with 60
hours per week. Humphres’ work was not reduced before the
layoff.
Bickerton testified that the second shift averaged 50 to 60
hours work per week for a year and a half right up to the
layoff. There was no slack in the work and Bickerton had
no notice of an impending layoff until March 30.
Former second-shift employee William Gray testified that
he was working at least 40 hours a week until the week of
the layoff when he was told by the leadman that the shift
would go to 5 workdays at 10 hours each day. Gray said
there was no reduction in the amount of work during the
months before the layoff. Gray did not work overtime in the
3 weeks before the layoff.
Record documents illustrate that the second shift was
working overtime up to the March 30 layoff. Three employ-
ees failed to work overtime in the week before the layoff but
the remaining eight employees all worked overtime.
General Counsel contends that the second shift was se-
lected for layoff on March 30 because of those employees’
union activities. In support of that contention General Coun-
sel pointed to evidence that Respondent believed that the sec-
ond shift was heavily involved in union activities. David
Threlkeld testified about a conversation he had with Super-
intendent T. J. Robbins at the mine on March 19 when after
asking Threlkeld if Threlkeld had heard anything about orga-
nizing activities, Robbins told Threlkeld that he had heard
that 70 percent of the second shift had already signed cards.
Tim McCoy testified that he was aware that the Union was
trying to organize his employees from the summer of 1989
when the Union was picketing at Black Creek because of the
Pittston strike. McCoy recalled there were 50 to 100 pickets
in ‘‘masks and paper sacks on their heads who would greet
the morning shift as they would come to work and threaten
and scare them.’’ That picketing lasted for over 4 weeks end-
ing at the end of July 1989. According to McCoy, over a
third of the work force left because of intimidation and
threats to their family and home. McCoy watched as union
representatives talked to his employees and one UMW rep-
resentative told McCoy that the Union’s objective was to or-
ganize IMAC. The Union was, as understood by McCoy, fo-
cusing on nonunion operations like the Black Creek Mine.
Even after the Pittston strike ended McCoy was periodi-
cally told by employees that UMW was wanting to talk with
them.
As shown above, Jerry Bickerton, William Earl Gray,
David Threlkeld, Jerry Humphres, and Edward Fair were in-
cluded in the March 30 layoff. All those employees were on
Respondent’s second shift at Black Creek, all testified in this
hearing, and they all testified that they signed union cards.
President McCoy admitted that Respondent had not had a
true layoff at Black Creek since it was opened in 1987 until
the March 30, 1990 layoff.
Bickerton had never been laid off before March 30, 1989.
He had worked for Respondent since March 1987.
David Threlkeld testified that he was phoned at his wife’s
business by Jack Maturo and told of the layoff. A few days
after the layoff Threlkeld, along with the other second-shift
employees that testified, received a registered letter from Re-
spondent advising that he had been terminated.
Threlkeld phoned his ‘‘boss,’’ Larry Guthrie. Guthrie con-
firmed that he too had heard that Threlkeld had been passing
out union cards but Guthrie told Threlkeld that he didn’t
think that was the reason for the layoff. Guthrie told
Threlkeld that Threlkeld still had a job, and that the layoff
was for economic reasons and lack of production on the
night shift.
Jerry Humphres was notified by letter that he was being
terminated.
Jerry Bickerton testified that when he talked to Jack
Maturo some 2 weeks before Respondent laid off the second
shift, Maturo asked Bickerton who was pushing the Union
and Maturo asked Bickerton to help Respondent find out
who was pushing the Union.
C. The Refusal to Rehire
Of the employees that were allegedly discriminatorily laid
off from the second shift at Black Creek on March 30, there
was evidence that only employees Jerry Bickerton, Titus
Smith, Billy Linley, and Edward Fair were offered work after
the layoff. Bickerton declined Respondent’s offer. Although
Edward Fair accepted Respondent’s offer, General Counsel
contends that Fair was not legally recalled.
Respondent contends that it mailed offers of reinstatement
to the laid-off employees. Former employees William Gray,
David Threlkeld, and Jerry Humphres testified that they were
not contacted by mail or otherwise, and that they were not
offered reinstatement. In line with my credibility findings, I
credit that testimony. I find that credited evidence proved
that those employees were never offered reinstatement fol-
lowing the March 30 layoff and the March 31 termination.
Respondent did offer reinstatement to Jerry Bickerton,
Titus Smith, Charles Alexander, and Ed Fair. Respondent’s
records show that Billy Linley who is not alleged as a
discriminatee, was reinstated in May 1990. Fair was put back
to work but General Counsel contends that he was not le-
gally reinstated. There is record evidence regarding that issue
which will be considered. Bickerton declined Respondent’s
offer of reinstatement. As to Titus Smith and Charles Alex-
ander there is uncontested evidence that both were offered
reinstatement. Smith was offered work at Sumiton and he de-
clined that job which was subsequently accepted by Ed Fair.
Respondent wrote Titus Smith on June 8, 1990, confirming
that Smith had told Jack Maturo that he was satisfied with
his current employment.
Jerry Bickerton testified that Titus Smith told him that
Maturo had called Smith and asked if Smith was interested
in returning to work for Respondent. Smith told Maturo that
the job being offered, which was that of running the crusher
up at Sumiton, was too dusty and he declined to return on
that job. Before the layoff Titus Smith ran the coal loader
on the second shift at Black Creek.
On June 14, Respondent wrote Charles Alexander advising
that employment was available with Respondent.
I credit the above-mentioned uncontested evidence. I do
not credit evidence showing that letters of reinstatement were
written to Threlkeld, Gray, and Humphres. As shown above,
I credit their testimony to the contrary.
In view of the complaint allegation that Respondent en-
gaged in a separate violation by refusing to recall six em-
ployees, I must consider that question regardless of whether
735IMAC ENERGY
it is found that Respondent engaged in illegal activity by lay-
ing off or terminating the employees.
Titus Smith and Charles Alexander did not testify. General
Counsel failed to show they were not offered reinstatement
and the uncontested evidence proved that the two of them
were contacted by Respondent regarding reinstatement.
General Counsel argued that neither Smith nor Alexander
were offered comparable work. However, the record does not
prove that Respondent’s offer was insufficient. Unlike the
situation with Edward Fair, there was no showing of how
Titus Smith’s job before the layoff compared with the job of-
fered him at Sumiton—i.e., the jobs of coal loader and
crusher.
As to Alexander, he did not appear pursuant to General
Counsel’s subpoena and the record does not dispute evidence
offered by Respondent. The record shows that Alexander was
written and advised of employment availability with Re-
spondent on June 14, 1990.
In view of the full record I recommend that the refusal to
reinstate allegations be dismissed as to Smith and Alexander.
The record included evidence regarding the availability of
work after the March 30 layoff. Record documents proved
that Respondent lost employees after the layoff in jobs simi-
lar to those held by laid-off employees on April 2, May 14,
June 4, and 24, July 30, on an unspecified date in August,
and September 10, 1990. Jack Maturo and Tim McCoy testi-
fied that beginning in May 1990 Respondent employed con-
tractors to perform work generated through its permit revi-
sion efforts. Additionally, as shown above, Respondent had
additional jobs in other locations including the job at
Sumiton which was filled by recalling Ed Fair on June 9,
1990.
Respondent contends, as shown above, due to the problem
created by uncovering old mine works it was necessary for
it to mine some other areas. Tim McCoy applied for a permit
revision with the Alabama Surface Mining Commission
which would allow Respondent to mine in other more pro-
ductive areas than the one mined at the time of the layoff.
According to McCoy he was able to apply for a permit in
an increment of the Black Creek area where he had a lease
and to also seek to lease some other land. McCoy testified
that the permit revision came through in May 1990 and he
was able to resume second-shift operations. He estimated that
he was able to start up those operations around mid-June.
McCoy said that he tried to contact the laid-off employees
but was successful in recalling only some of those employ-
ees.
Respondent is using contract companies to man some of
the jobs because, according to McCoy, the new permit areas
will not provide enough mining time to justify an additional
investment in equipment. That area will not last over a year
according to McCoy. The contract companies’ employees are
rock truckdrivers. Additionally McCoy testified that some of
the rock truckdrivers are Respondent’s employees but he did
not know from memory, how many current rock truckdrivers
are his own employees. McCoy estimated when he testified
on November 19, 1990, that four or five of the employees
on the second shift were employees of Respondent as op-
posed to employees of one of the contract companies. He es-
timated that the total number of employees on the second
shift is 9 or 10.
Additionally, Respondent provides two or three service
contract employees at Sumiton, Alabama, to do crushing and
loading for Continental Energy and Respondent operates a
mine at Natural Bridge, Alabama, where it employs another
10 to 12 employees according to McCoy.
Jerry Bickerton, one of the laid-off second-shift employees
at Black Creek, was contacted by Jack Maturo on May 25,
1990, and asked if he was ready to go back to work.
Bickerton told Maturo that he had another job and was not
interested in returning to Respondent at that time.
Although Respondent offered evidence that it contacted
Bickerton by mail confirming that he did not desire reinstate-
ment, Bickerton testified that he never received a letter from
Respondent regarding recall. The May 25 conversation with
Maturo was his only contact with Respondent about going
back to work.
General Counsel does not allege that Respondent illegally
failed to recall Bickerton.
During their May 25 conversation Jack Maturo asked Jerry
Bickerton to have Eddie Fair contact Maturo.
Eddie Fair was the Union’s observer during the April 27,
1990 election.
Fair was put back to work by Respondent at Sumiton, Ala-
bama, on June 9. When Fair phoned Jack Maturo after being
contacted by Jerry Bickerton who is a neighbor of Fair,
Maturo told Fair he would get back to him after checking
with some other employees. Maturo again contacted Fair
through Bickerton. Fair did not have a phone. Maturo said
that Titus Smith had accepted the job and that Fair would
not be needed then. Later, again through Bickerton, Fair was
called by Maturo and put to work at Sumiton. Maturo told
Fair that Titus Smith had turned the job down because it was
too dirty.
General Counsel contends that Fair was never properly re-
instated. Fair worked for 6 weeks at Sumiton on the crusher
and driving the semi. Although he had previously worked 60
hours a week before the layoff, he was scheduled to work
only four 10-hour days each week while on the night shift
at Sumiton and, according to Fair, he never did work a full
40-hour week. The Sumiton job was held by Fair from June
9 to July 21, 1990. On July 21, Fair was transferred to driv-
ing a rock truck at Black Creek on the day shift. Jack
Maturo told Fair that Respondent had acquired some more
rock trucks. Fair asked both T. J. Robbins and Maturo to be
placed on the night shift but that request was refused. After
Fair was back at Black Creek for a week another rock truck-
driver, Brockway, requested night shift and was transferred
to night shift.
Jerry Humphres testified that he has not been contacted
about going back to work. Humphres’ phone was discon-
nected shortly after the layoff but he has retained the same
address. He was advised of his termination by letter at that
address.
William Gray was laid off with the other second-shift em-
ployees on March 30. Gray testified that Respondent has not
phoned or written him regarding a recall to work since his
layoff. Although Gray was notified that he had been termi-
nated by certified mail and his mailing address has not
changed, he has received nothing in the mail regarding recall.
Gray was told by the NLRB investigator that Respondent’s
files showed they had tried to contact Gray regarding going
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
back to work. Gray admitted that he did not contact Re-
spondent to determine if they wanted him to return to work.
According to Gray he is both qualified and willing to per-
form any of Respondent’s jobs.
David Threlkeld testified that he has not been contacted by
Respondent, and Threlkeld did not initiate contact with Re-
spondent, regarding recall. When shown a letter addressed to
him dated July 26, 1990, stating that Respondent had job
openings, Threlkeld denied that he had received the letter.
General Counsel called Rodney Barton who testified that
he was hired to work for Respondent at the Natural Bridge
Mine after talking with T. J.
Barton testified that he was employed by Mega Services
to work for Respondent at their Natural Bridge Mine during
July 1990 as a bulldozer operator on the second shift. Barton
talked to T. J. in Respondent’s management about his pay.
T. J. told Barton that he would be paid in cash.
Barton also testified that during a conversation at work,
Barton’s brother asked T. J. about rehiring David Threlkeld:
T. J. said he wasn’t really sure how that was gonna
happen because they was still all tied up in the hearings
and what have you.
And then they got to talking. It was real funny, too.
They said they was gonna offer [David Threlkeld] a job
back, and my brother told him, he said, ‘‘Well, you
need to get whatever you’re gonna put him on in tip-
top shape.’’ And [T. J.] said, yeah, he would do that,
but he was gonna put more on him than he could stand
regardless.
Barton testified on cross-examination that his prehearing
affidavit included the following:
I asked T. J. how long it would be before I could
get on the payroll. T. J. said: ‘‘When the lawsuit’s over
with and we offer the people their jobs back. Most of
them are not accepting them. We’ve got to offer David
[Threlkeld] a job. It’s gonna be on a rock truck.’’
Barton admitted that nothing was said about David
Threlkeld’s union activities during his conversations with
T. J.
On direct examination, Barton testified that after he in-
quired about overtime pay T. J. got back to him and told him
that they could not pay overtime for the time Barton put in
over 40 hours a week.
On cross-examination Barton admitted that his prehearing
affidavit indicated that he asked T. J. for more money and
that T. J. refused to give him a raise in pay. Barton quit the
job on being told his pay would not be increased.
T. J. Robbins admitted that Barton quit after he told Bar-
ton that his pay would not be increased.
Findings: The record shows that the second shift was laid
off on March 30; some, if not all, those second-shift employ-
ees were terminated by letters dated March 31, 1990; and
several of those employees credibly testified that they were
never contacted by Respondent regarding returning to work.
The evidence shows that Respondent was opposed to the
union organizing activities and Respondent demonstrated
antiunion animus through 8(a)(1) activity. Threats made by
Respondent, as shown above, included a threat to rid itself
of the employees that signed union cards by closing and re-
opening the mine. I find that General Counsel proved prima
facie that the union campaign contributed to Respondent’s
decision to lay off employees on March 30 and to terminate
them on March 31, 1990.
That evidence supporting a prima facie case includes a
showing that Respondent terminated some, if not all, its sec-
ond-shift employees immediately after the layoff shortly after
it heard that 70 percent of those employees had signed union
cards; Respondent gave shifting reasons for the layoff as
shown during testimony of Timothy McCoy showing at one
point that the layoff was necessitated because of low produc-
tion due to an underground mined area and high overburden,
and at another point showing that there was enough coal to
mine but the second shift was falling down on the job; and
Respondent granted its employees a raise in pay of 25 cents
an hour and more, during early March 1990, at a time when
the figures showed production had already dropped and ac-
cording to their own testimony, both Tim McCoy and Jack
Maturo were aware of poor production by the second shift
at the time of the pay increase.
The above evidence supports the finding of a prima facie
case in support of the complaint allegations. Those same fac-
tors also support a finding that the asserted bases for the lay-
off were pretextual. Although several of the factors pointed
to by Respondent are factually correct, the record shows the
bases may nevertheless be pretextual as grounds for Re-
spondent’s actions against the second shift.
In that regard, at one time during his testimony Tim
McCoy testified that he decided to lay off the second shift
even though there was sufficient coal to mine, because the
second shift was taking long breaks, they were working
through breaks in order to leave work early, and they were
not being as productive as the first shift.
However, the record failed to show that the second shift,
and particularly the leadman over the second shift, was ever
informed that the second shift was not producing as much
coal as the first shift. Bickerton agreed that normally the sec-
ond shift should produce more than the first shift because the
first shift has more nonproductive duties.
Additionally, the decision makers for Respondent dis-
agreed over the timetable on the layoff decision. Super-
intendent Robbins testified that he met with Tim McCoy and
decided on the layoff about the first of March. Robbins re-
called they decided to lay off the second shift at that time
‘‘because they was not performing and it was costing
[McCoy] money.’’ Tim McCoy testified that the decision to
lay off the second shift was made a few days before March
30. Jack Maturo recalled the decision was made on March
29 when he, McCoy, and Robbins met and went over pro-
duction and pit advancement records.
Respondent granted its employees a pay increase of 25
cents an hour and more, in early March 1990. Four employ-
ees including Joe Fuller who worked on the first shift, re-
ceived pay increases of 25 cents per hour. Some employees
received increases of $1 per hour and some received in-
creases of 50 cents per hour.
At the time of the pay increase Respondent had figures
from T. J. Robbins showing that the second shift was not
moving as much overburden as the first shift; Respondent
knew that production had decreased from 14,364 tons in Jan-
uary to 11,875 in February; Respondent had discovered
through exploratory drill holes 1 month before reaching pre-
737IMAC ENERGY
1 The evidence illustrated only that those employees that testified
in this matter received letters of termination. However, there was no
evidence showing that other laid-off employees did not receive simi-
lar letters.
viously mined areas that it was getting into an extensive area
of previous underground mines; and Respondent had decided
that it was necessary to seek permit revisions and new leases
due to its difficulty in producing coal.
Additionally, the evidence which I credit shows that the
laid-off employees were regularly working overtime each
week until March 30.
Moreover, despite the evidence showing that Respondent
was aware that it was entering a previously mined area some
30 days before it reached that area, despite its knowledge of
the high overburden wall on the other side of the pit, and
despite its alleged knowledge about the slackness of the sec-
ond shift several days or weeks before March 30, the evi-
dence shows that layoff was called on a Friday morning dur-
ing a pay period. The employees were not notified at the end
of their prior shift. Instead on the morning before they were
to report that afternoon, Respondent phoned to advise of the
layoff. That evidence tends to show that the decision to lay
off on March 30 was a sudden decision.
The above evidence which tends to show that Respond-
ent’s asserted bases for its actions were pretextual, also calls
into question the issue of whether Respondent would have
acted in the absence of protected activities. The record does
include some support for Respondent’s contention there was
business justification for the layoff. The production at Black
Creek had dropped before the layoff. Respondent had uncov-
ered a previously mined area which resulted in it mining less
coal and it had to uncover a substantial overburden to reach
some of the coal.
However, Respondent did not stop with a layoff. On the
following day it sent notices of termination to at least five
of the laid-off employees1 and the laid-off employees were
not recalled when Respondent first had openings available.
Three of the laid-off employees including David Threlkeld
who, along with Joe Fuller, were the two employees most in-
volved with the Union, were never recalled.
The evidence shows that Respondent was aware of its em-
ployees increased union activities in mid-March 1990. It was
also aware on March 19 that 70 percent of the second shift
had signed union cards. Eight employees in a 25-person unit
was enough to support a petition for an election. Laid-off
employees with a reasonable expectation of recall, are enti-
tled to vote in an NLRB election. Terminated employees,
who of course, have no expectation of recall, are not entitled
to vote in an NLRB election. See, for example, Apex Paper
Box Co., 302 NLRB 67 (1991).
The evidence mentioned above especially that involving
the timing of the layoff coming shortly after Respondent
learned that the bulk of the union activity was on the second
shift, tends to illustrate that those grounds which had existed
for several weeks before March 30 were used as a pretext
to justify the layoff. Moreover, there was no showing of any
business basis for the March 31 discharge of the second-shift
employees.
Respondent was supported in its argument that the second
shift was not as productive as the first shift. However, the
testimony of T. J. Robbins illustrated that there was a long
history of the second shift being less productive. Robbins
testified that he was promoted to leadman on the second shift
around August 1987 because of the lack of productivity of
the second shift.
Additionally, there was evidence illustrating that Respond-
ent did not follow established practice of dealing with low
production on the second shift.
During most of the second shift there was not a supervisor
present. Instead the second shift was directed by leadmen. As
shown above, Respondent had, in the past, replaced its sec-
ond-shift leadman due to low production. Here, in March
1990, Respondent took a different course. Eight of the eleven
employees were laid off and the shift was shut down.
Moreover the evidence failed to show that Respondent had
anything other than an unlawful motivation in failing to re-
call Threlkeld, Humphres, and Gray. I credit the testimony
showing that none of those employees were contacted by
mail or otherwise regarding reemployment. The record estab-
lished that Respondent had openings including openings
manned by employees of contract companies, that could have
been manned by the alleged discriminatees.
The testimony of Rodney Barton demonstrated that despite
the fact that he was employed by a contractor of Respondent,
he was actually hired and supervised by T. J. Robbins. Both
Barton’s and Robbins’ testimony illustrated that point. Al-
though Tim McCoy testified that he used contract employers
because the expected duration of the expanded mining areas
was no more than a year, the record illustrated that leased
equipment was operated by both employees of Respondent
and contractors. Therefore, the record did not support
McCoy’s contention that he avoided the cost of purchasing
new equipment by using contract employers.
Additionally, as shown above, the record illustrated that
Respondent exercised control over all the jobs available at its
operations at Sumiton, Black Creek, and Natural Bridge. Re-
gardless of whether the job was manned by a contract em-
ployee or an employee of Respondent, the record illustrated
that Respondent retained the authority to employ someone of
its own choosing to fill that job. Laid-off employees could
have been reinstated to either contract employer positions or
positions on Respondent’s payroll.
The record indicated that all the jobs could have been
filled by laid-off employees if Respondent, through its super-
intendent, had elected to rehire those employees.
Respondent offered no credible justification for its failure
to recall Threlkeld, Gray, and Humphres. Jack Maturo testi-
fied that he would have offered employment to Threlkeld if
Threlkeld had spoken to him when they met at a convenience
store during July 1990. I do not credit that testimony which
conflicted with the testimony of Threlkeld.
In view of the record, I find that Respondent was moti-
vated in refusing to rehire Threlkeld, Humphres, and Gray
because of protected activities.
The testimony of Rodney Barton showing that T. J. Rob-
bins expressed an intent to put more on Threlkeld than he
could handle if Threlkeld was recalled, further illustrates Re-
spondent’s illegal motive in refusing to recall the alleged
discriminatees.
Respondent failed to show that it would have refused to
rehire those employees in the absence of protected activities.
As shown above, I credit the evidence showing that Re-
spondent did not contact those employees regarding reem-
ployment. I discredit the testimony of Tim McCoy that he
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mailed letters to them advising of job opportunities. The
record illustrated that Respondent possessed valid, current in-
formation regarding the employees’ mailing addresses but
that Respondent failed to contact them. In fact Respondent
had mailed registered or certified letters of termination to
those same employees at their existing addresses on March
31, 1990.
I find that the record illustrated that Respondent was moti-
vated by its employees protected activities in laying off
David Threlkeld, Jerry Bickerton, Titus Smith, Charles Alex-
ander, Jerry Humphres, William Gray, and Ed Fair, and in
its refusal to reinstate Threlkeld, Humphres, and Gray. The
record also shows that Respondent failed to prove that it
would have laid off Threlkeld, Bickerton, Smith, Alexander,
Humphres, Gray, and Fair, and refused to reinstate Threlkeld,
Humphres, and Gray, in the absence of protected activities.
(Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983);
Delta Gas, Inc., 283 NLRB 391 (1987), enfd. 840 F.2d 309
(5th Cir. 1988); Southwire Co. v. NLRB, 820 F.2d 453 (D.C.
Cir. 1987); Superior Coal Co., 295 NLRB 439 (1989); Doro-
thy Shamrock Coal Co., 279 NLRB 1298 (1986); GSX Corp.
of Missouri, 295 NLRB 529 (1989); T & H Investments, 291
NLRB 409 (1988)).
As to the question of Edward Fair’s reinstatement. The
credited evidence shows that when Respondent recalled Fair
after the March layoff, it originally placed Fair on the
crusher job at Sumiton on June 9, 1990. At that time other
employees were occupying the same job formerly held by
Fair at Black Creek. That was the job of rock truckdriver.
Before the layoff Fair regularly worked overtime. At
Sumiton, Fair did not work a full 40 hours on any of the
weeks he was assigned to that job. When Fair was trans-
ferred to Black Creek on July 21, 1990, he was assigned to
first shift despite his expressed preference for the second
shift.
Although Respondent admitted that Fair was a good rock
truckdriver before the layoff, he was discharged allegedly be-
cause he was not giving 100 percent after he was reem-
ployed.
As shown above, it was Respondent’s policy to warn its
employees at least three times before discharge. However,
the man that directed Fair’s work after he was reemployed
at Black Creek, Bruce Cornelius, was able to recall only one
occasion in which he reprimanded Fair. On that occasion
Fair failed to perform routine maintenance and to advise Re-
spondent that his truck needed repair while the operations
were shut down.
At the time of his discharge, Respondent was aware that
Fair had been the union observer during the April 27, 1990
election. The evidence shows that Fair was never reinstated
to the same position he held before the layoff even thought
that position was available at times after the March 30 lay-
off. Fair was placed on jobs other than his former position
under working conditions that did not measure up to the con-
ditions he worked under prior to the layoff and termination.
His March 1990 layoff and termination were discriminatorily
motivated and Respondent failed to show it would have
taken those actions against Fair absent its employees’ pro-
tected activities. Similarly the record illustrated that Fair was
discriminatorily treated after being reemployed and Respond-
ent failed to show that it would have treated Fair in that
fashion, in the absence of protected activities. (Wright Line,
supra; NLRB v. Transportation Management Corp., supra;
Delta Gas, supra; Southwire Co. v. NLRB, supra).
I find that Respondent failed to reinstate Fair to his former
position and that his former position was available at the
time Fair was reemployed. Respondent failed to retain Fair
as an employee on a nondiscriminatory basis. Therefore I
find in agreement with General Counsel that Respondent
failed to properly reinstate Edward Fair. Deauville Hotel, 256
NLRB 561 (1981).
CONCLUSIONS OF LAW
1. IMAC Energy is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Mine Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent, by interrogating its employees about their
union activities; by telling its employee that an employee had
been discharged because of his union activities; by threat-
ening to close it mine because of its employees’ union activi-
ties; by soliciting its employees to assist it in learning the
names of those employees supporting the Union; by threat-
ening to discharge its employees because of their union ac-
tivities; by telling its employees that it preferred that they
quit if they support the Union; and by threatening its em-
ployees that it would be futile for them to select the Union
as their bargaining representative, has violated Section
8(a)(1) of the Act.
4. Respondent, by discharging its employee Joe Fuller; by
laying off employees David Threlkeld, Jerry Bickerton, Titus
Smith, Charles Alexander, Jerry Humphres, William Gray,
and Ed Fair; by terminating the employment of David
Threlkeld, Jerry Bickerton, William Gray, Jerry Humphres,
and Ed Fair; and by refusing to reinstate David Threlkeld,
William Gray, Jerry Humphres, and Ed Fair, because of its
employees’ activities on behalf of United Mine Workers of
America, has violated Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent has illegally laid off, dis-
charged, and refused to rehire its employees in violation of
sections of the Act, I shall order Respondent to offer David
Threlkeld, Jerry Humphres, William Gray, Ed Fair, and Joe
Fuller, immediate and full reinstatement to their former posi-
tions, or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges. I further order Respondent to
make Threlkeld, Humphres, Gray, Fair, Fuller, Jerry
Bickerton, Titus Smith, and Charles Alexander whole for any
loss of earnings they suffered as a result of the discrimina-
tion against them and that Respondent remove from its
records any reference to the unlawful actions against its em-
ployees and notify each of those employees in writing that
739IMAC ENERGY
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
3 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Respondent’s unlawful conduct will not be used as a basis
for further personnel action. Backpay shall be computed as
described in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as described in New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, IMAC Energy, Brilliant, Alabama, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union activities;
telling its employees that an employee had been discharged
because of his union activities; threatening to close it mine
because of its employees’ union activities; soliciting its em-
ployees to assist it in learning the names of those employees
supporting the Union; threatening to discharge its employees
because of their union activities; telling its employees that it
prefers they quit their job if they support the Union; and
threatening its employes that it would be futile for them to
select the Union as their bargaining representative.
(b) Laying off, discharging, and refusing to rehire its em-
ployees because of their protected activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Joe Fuller, David Threlkeld, Jerry Humphres,
William Gray, and Ed Fair immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously enjoyed,
and make Fuller, Threlkeld, Humphres, Gray, Fair, Jerry
Bickerton, Titus Smith, and Charles Alexander whole for any
loss of earnings plus interest, they suffered by reason of its
illegal actions.
(b) Rescind its layoff, discharge, and refusal to rehire, as
the case may be, of employees Joe Fuller, David Threlkeld,
Jerry Bickerton, Jerry Humphres, Titus Smith, Charles Alex-
ander, William Gray, and Ed Fair, and remove from its files
any reference to its illegal actions and notify each of those
employees in writing that this has been done and that evi-
dence of its unlawful actions will not be used against them
in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, and timecards, personnel
records, reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Order.
(d) Post at its facility in Brilliant, Alabama, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT interrogate our employees about their activi-
ties on behalf of United Mine Workers of America or any
other labor organization.
WE WILL NOT tell our employees that we have discharged
an employee because of his union activities.
WE WILL NOT threaten our employees with closing our
mines because of our employees’ union activities.
WE WILL NOT threaten our employees with discharge be-
cause of our employees’ support for the Union.
WE WILL NOT solicit our employees to assist us in learning
the names of employees that support the United Mine Work-
ers of America or any other labor organization.
WE WILL NOT threaten our employees that it will be futile
for them to select the Union as their collective-bargaining
representative.
WE WILL NOT threaten our employees that we prefer that
they quit if they support the Union.
WE WILL NOT lay off, discharge, or refuse to rehire our
employees because they engage in protected concerted activi-
ties.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights
guaranteed them by Section 7 of the Act.
WE WILL offer immediate and full reinstatement to David
Threlkeld, Jerry Humphres, Joe Fuller, William Gray, and Ed
Fair to their former jobs, or, if those jobs no longer exist,
to substantially equivalent positions without prejudice to their
seniority or other rights and privileges.
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL make David Threlkeld, Jerry Bickerton, Jerry
Humphres, Joe Fuller, Titus Smith, Charles Alexander, Wil-
liam Gray, and Ed Fair, whole for any loss of earnings they
suffered by reason of our discrimination against them with
interest.
WE WILL rescind our actions found illegal, against Fuller,
Threlkeld, Bickerton, Smith, Alexander, Humphres, Gray,
and Fair, because of their protected activities.
WE WILL notify Fuller, Threlkeld, Bickerton, Smith, Alex-
ander, Humphres, Gray, and Fair, in writing, that we have
rescinded the actions found illegal and that we will not use
those actions against them in any manner.
IMAC ENERGY