Keister Coal Co., Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1980

247 N.L.R.B. 375 (N.L.R.B. 1980)

Keister Coal Company, Inc. and United Mine Work-
ers of America. Case 6-CA-I 1889
January 17, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 24, 1979, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in this
proceeding. Thereafter, Respondent and the Charging
Party filed exceptions and supporting briefs. The
Charging Party also filed a brief in answer to
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision' in light of the exceptions2 and
briefs and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Keister Coal Company,
Inc., Belington, West Virginia, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I In his Decision the Administrative Law Judge inadvertently referred to
September 9 and 10 in the section entitled "Promising and Granting
Benefits." The correct dates are January 9 and 10. This inadvertent error in no
way affects the validity of the Decision.
I No exceptions were filed to the Administrative Law Judge's dismissal of
certain alleged violations of Sec. 8(aX)(). The Administrative Law Judge found
that Respondent did not violate Sec. (a( I) when Supervisor Virgal Smith
responded to news of organizational activity with the statement that "Jack
Keister [Respondent's president] will never go Union"; when Keister. in his
December 5 speech, referred to prior promises made to employees that they
would receive increased benefits; or when Supervisor Wilmouth stated to an
employee that he had been informed about a union meeting and that he knew
who had attended.
I Respondent and the Charging Party hard excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
However, we do find merit in Respondent's exceptions to the Administra-
tive Law Judge's characterization of Vincent Smith's testimony. Smith did not
directly testify that Respondent was understaffed, but rather testified that he
told an employee to be careful with his work because Respondent was
understaffed.
247 NLRB No. 49
KEISTER COAL COMPANY, INC.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: Pursuant
to an unfair labor practice charge filed by United Mine
Workers of America, herein called the Union, a hearing in
this matter was held in Elkins, West Virginia, on April 10
and 11, 1979, upon a complaint and amended complaint
issued by the Regional Director and an answer filed by
Keister Coal Company, Inc., herein called Respondent.
Upon the entire record, including my observation of the
demeanor of witnesses, and consideration of the briefs filed
by all parties, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a West Virginia corporation which is
engaged in the mining and nonretail sale of coal at its only
place of business in Belington, West Virginia. During the 12-
month period preceding the issuance of the complaint
Respondent shipped goods and materials valued in excess of
$50,000 to firms or enterprises located within the State of
West Virginia which are directly engaged in interstate
commerce. All parties agree and I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE UNION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
ill. THE UNFAIR LABOR PRACTICES
A. The Issues
It is alleged that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, by the interroga-
tion of employees; by threatening employees with layoffs,
cessation of operations, discharge, and loss of a Christmas
bonus; by promising employees benefits and granting em-
ployees a wage increase; by the creation of the impression of
the surveillance of employees' union activities; by informing
employees that if they ceased their union activities no
employee would be laid off or terminated; and by the
termination of the employment of three employees because
of their union activities.
B. Background
Respondent is engaged in mining and maintains a strip
mining site and a tipple located approximately 17 miles from
the strip site. Near the strip site Respondent at the time of
the hearing was engaged in the process of clearing timber-
land and constructing a coal preparation (cleaning) plant
within a few hundred yards of the strip site. Respondent's
entire operation commenced in late 1977. Respondent's
375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
president and chief executive officer is and was Jack Keister.
In the early days of Respondent's operation Keister was also
its only supervisor. He hired some employees at the
beginning of 1978 for the purpose of maintaining equipment.
The effective operational work force was hired in April 1978.
(All dates herein are 1978 unless otherwise indicated.) Leo
Wilmouth was hired in early April as "a dozer" operator
and became a foreman in midsummer 1978. On or about
December 5 he was promoted to assistant superintendent.
Mel Steininger entered on duty as superintendent in mid-
August 1978. Virgil Smith entered on duty in September
1978 as a supervisor at the tipple. Vincent Smith commenced
his employment in November 1977 but assumed supervisory
duties as master mechanic in May. It is admitted that the
foregoing named individuals occupied positions as supervi-
sors within the meaning of the Act at all times material.
As of December 5 approximately 25 to 30 employees were
maintained by Respondent, of which 20 were assigned to the
strip site and approximately 4 or 5 to the tipple. Several
employees were utilized in clearing the site for the coal
preparation plant. Two employees were engaged in a
backfilling operation required under the land reclamation
and conservation program. This backfilling operation was
performed at Hodgevlle, West Virginia, for and on the site
of the Scott Coal Company, an employer not involved
herein. Respondent performed this backfilling service as an
accommodation for Scott.
C. The Union's Organizing Campaign
On November 6 employee Charles Nuzum met with
Union Representative Steve Nikses at Nuzum's home in the
evening and discussed the feasibility of organizing the
employees at Keister. On or about the same time between
November 3 and 7 employee Kenneth Shifflett engaged in a
conversation with the tipple foreman, Virgil Smith, while the
two of them were alone. In that conversation Smith asked
Shifflett whether he had worked at a union job in the past.
Having responded affirmatively Shifflett was further asked
whether he liked it. To that he responded: "Yes, I liked it
and I think that's the only way they ought to go and [it] goes
well."'
Thereafter, in mid-November, Nuzum talked to several
employees concerning the prospects of union organizing at
the Keister jobsite. He spoke to employee Hunt at the tipple
on or about November 15, and later in the same week he
spoke to employees Allen Evix, Mike Skidmore, and Eugene
Shaffer at the tipple. On November 27 Virgil Smith engaged
in a conversation with laborer David Hunt, on the road, at
the gate leading to the tipple. Nearby was Kenneth Shifflett.
' I credit Shiffett's account of the conversation. Smith's testimony was
vague and uncertain and did not explicitly contradict Shimett.
I conclude that Shifflett's testimony as to the date of this meeting is more
accurate than Hunt's. Shimett related conversation to other events. Further-
more, December 5 was the date of his termination from employment. It is
more likely he would have recollection of the conversation as occurring on
that date had it occurred on that date. Finally, I find Virgil Smith's evasive
and hesitant testimony unconvincing. He first testified that "to my knowl-
edge" he made no such statement, then he testified that he did not
"remember" the conversation, and then he said that, if he did make the
statement, "I probably passed it off as a joke."
'There is factual dispute between Wilmouth and employee Mark Winans as
Hunt told Smith that the Union was "coming in," to which
Smith responded that Jack Keister "will never go union."2
On Friday, December 1, as they worked at their task at
the preparation plantsite Shimett, Nuzum, and employee
Perry Weaver discussed the advantages of union representa-
tion and organization of the employees. Nuzum and Perry
had previously discussed the Union, at which time Perry
indicated that he was in favor of it. On the same day,
December 1, Shifflett and Nuzum had discussed the possibil-
ity of organizing the plant. During the course of the day
Nuzum asked Shifflett if Nikses had contacted him yet, to
which he responded negatively. Later in the day employee
Carol Winnans approached Nuzum's pickup truck, spoke to
Nuzum and Shimett therein, and told Shifflett that Nikses
wished to see him. That evening Shifflett met with Nikses,
and it was decided to arrange a meeting between the
employees and Nikses on Sunday, December 3. Later
Shimett met Perry Weaver and employee Marshall Prichard
at Weaver's house and notified them that a meeting would
be held with a union representative on December 3. Still
later Shifflett, Perry Weaver, and Prichard proceeded to the
homes of four other employees for the purpose of notifying
them of the December 3 meeting.
Nuzum, Shifflett, and Perry Weaver continued their work
tasks on Saturday, December 2, at the preparation plantsite.
During the course of the day Nuzum engaged in a
conversation with Steininger wherein he asked Steininger
whether he had ever belonged to a union at a past employer,
and Steininger responded that he had never been a "union
man" but had always been a "company man." As Shifett,
Nuzum, and Perry Weaver continued their duties of clearing
the plantsite that afternoon they further discussed the union
and the meeting scheduled for the employees and Nikses.
That evening Shifflett and Nuzum visited Nikses at his motel
room and executed union authorization cards. Shifflett
thereafter departed alone, proceeded to employee Junior
McLean's home, and obtained and executed a union authori-
zation card. The purpose for the special visit was that
McLean was not able to attend the scheduled union meeting.
On December 3 a meeting was held at Mellie's Restaurant
in the town of Philippi, West Virginia. The meeting was
attended by Nikses, Perry Weaver, Shifflett, Nuzum, Mark
Winans, David Hunt, Randy Haddix, Marshall Prichard,
Ronald Poe, Allen Evix, David Weaver, and Mike Skid-
more. The employees selected Perry Weaver as committee-
man to represent the strip site employees and Shifflett as
union committeeman to represent the tipple employees.
Respondent's foreman, Leo Wilmouth, admittedly had
advance notice of the fact that the employees were to have a
union meeting that Sunday afternoon.' Wilmouth and Mark
Winans occupied adjoining homesites in West Virginia
to how this knowledge was acquired, as is there also a factual dispute between
Leo Wilmouth and other of the General Counsel's witnesses as to other
confrontations between themselves and Wilmouth concerning the subject
matter of the Union. I credit all testimony of the General Counsel's witnesses
and discredit the contrary or contradictory testimony of Leo Wilmouth,
whom I found to be most unconvincing in his hesitant, uncertain, and furtive
demeanor. Moreover, I found him to be evasive and his testimony internally
inconsistent. The employee witnesses, however, most of whom with the
exception of the dischargees were at the time of the hearing employed by
Respondent, yet rendered testimony adverse to the interest of their present
Employer. They did so with a demeanor marked by an objective disinterest
and responsiveness. They gave no evidence of a bias or hostility to the interest
376
KEISTER COAL COMPANY, INC.
countryside. On the morning of December 3 Mark Winans
was engaged in a conversation with Wilmouth in the field
outside his home. Wilmouth asked Mark Winans whether it
was his intention to attend the union meeting. Winans made
no response except to say that he was going to go down to
the meeting to "see what they had to say." Wilmouth
testified that the next day, Monday, as soon as he saw Jack
Keister he told him about the union meeting, and that no
later than noon the same day he told Steininger that the
employees were going to organize for the union. Keister
testified that Wilmouth told him that on the morning of
December 5. Steininger was rather uncertain in his testimo-
ny but stated that he heard about the union organizing effort
either on Monday or Tuesday from Leo Wilmouth and from
Jack Keister. It is unlikely that Wilmouth kept silent about
this matter until Tuesday, inasmuch as he testified that he
told his superiors about the organizing effort as soon as he
saw them. It is more probable that he told Keister about it
on the morning of December 4. This is more in accord with
Steininger's testimony that he also was informed of the
union organizing from both Wilmouth and Keister, and
Wilmouth was rather certain in his testimony that he
informed Steininger of it by noon on Monday.
On December 4 or 5 employee Allen Evix was at the strip
jobsite standing near Wilmouth's truck while Wilmouth sat
inside. They engaged in a conversation wherein Wilmouth
asked him if he had gone to the union meeting. Upon an
affirmative response Wilmouth stated: "There goes our
Christmas bonus." On December 5 Wilmouth, again at the
strip jobsite next to the end loader which employee McLean
was operating, engaged in a conversation with McLean
wherein he asked McLean whether he had gone to the union
meeting. McLean responded negatively. Wilmouth then
questioned him: "You wouldn't fight for a union, would
you?" McLean responded that he did not know, and that he
had not heard "all there is to say."
On December 4 employee David Weaver had occasion to
ride in the cab of a truck with fellow employee Randy
Haddix and Foreman Wilmouth. At that time Wilmouth
asked those two employees whether they had attended the
union meeting on Sunday. Both employees remained silent.
At that point Wilmouth stated that "if Jack finds out there
goes our Christmas bonus...." Later on Wilmouth
pursued his conversation with Weaver individually and
again asked him if he attended the union meeting. This time
Weaver admitted that he had. Wilmouth then asked him
what transpired at the meeting, and Weaver equivocated and
stated "just a little bit of everything." Wilmouth then said:
"Well, if I hear anybody else talking union, I'll see that they
get fired over it." Wilmouth added that he would further see
to it that, even after he fired those employees or if any
employee who had been talking union quit and attempted to
of the Employer, or overweening loyalty to the Union that might have
motivated them to testify adversely to their Employer. It is also significant
that these employee witnesses, although not sequestered from the hearing
room, made no attempt to parrot one another In many areas they refused to
corroborate the testimony of fellow employees where their memories honestly
failed them. At other times they testified to significantly different versions
which in part corroborated the testimony of a respondent witness, e.g.. the
testimony of Jack Keister which will be discussed hereinafter.
' Significantly. Wilmouth did not specifically respond to Respondent's
counsel's question as to whether he interrogated Perry as to signing a union
card or attending a union meeting, but rather he evasively responded that
get work at the Badger Coal Company, he, Wilmouth,
would see to it that such employee would not be able to get a
job. Badger, an employer not involved herein, is located at
Bolder, West Virginia.
On the morning of December 5 on the strip jobsite
Wilmouth engaged employee Perry Weaver in a conversa-
tion wherein he asked Weaver whether he had gone to the
union meeting. Weaver responded yes, that he had indeed
gone to the meeting and further asked Wilmouth how he
knew about it. Wilmouth explained that Archie Huffman
had told him about the meeting and further that he,
Wilmouth, was aware of the identity of all employees who
were at the union meeting, since this had been disclosed by
Huffman. Huffman is an employee at the Badger Coal
Company. Wilmouth then asked Perry Weaver whether he
had signed a union card. Weaver admitted that he had.
Wilmouth then stated that the job would never go union
even if he came to the point that Wilmouth himself would
have to purchase it to prevent it from being organized.'
In the afternoon on December 5 Wilmouth instructed
Perry Weaver to meet him at his office at 2 p.m. At the
appointed hour a discussion ensued between the two
individuals. In that conversation Wilmouth told Perry
Weaver that a second foreman's position was to open, and
that the choice for that position was between Weaver and
employee Herbert Kearns. Wilmouth indicated that al-
though Kearns had more personal work experience Weaver
had greater tenure with Respondent. Weaver conceded that
he had discussed the possibility of the foreman's job well
before the onset of the union organizing drive. He explained,
however, that in the prior conversations Wilmouth did not
specifically allude to the possibility that Weaver might be
selected for that position. According to Wilmouth, the
earlier conversation occurred in late November, at which
time Perry Weaver approached him and asked whether there
was a possibility of a second foreman's position opening up,
to which Wilmouth responded that he was aware of no
opening at that time but if an opening did occur Weaver
would be qualified. Wilmouth, whom I discredit, testified
that he had no subsequent conversation with Perry Weaver
wherein he informed Weaver that he was one of two
candidates for that position. However, Wilmouth conceded
that his promotion to assistant superintendent on December
5 created in his mind the assumption that a second
foreman's position would open. In fact, however, Wilmouth
ultimately carried on the same duties under a different title,
and no second foreman's position opened up about that time.
On December 5 at 2:30 p.m. all strip employees were
assembled in the presence of Jack Keister, Mike Tiano (the
vice president), Mel Steininger, and Leo Wilmouth. Keister
read a prepared speech to the employees as follows:
Huffman had asked him why he was not at the union meeting, and that he
told Huffman that he was not aware of the union meeting. Inexplicably.
however, Wilmouth further testified, in cross-examination that he engaged in
this conversation with Huffman after he had talked to Winans. Therefore, he
did indeed know about the union meeting when he had talked to Huffman. In
any event, Wilmouth finally admitted that he did indeed talk to Huffman
about the union meeting, and that he also talked to Perry Weaver about this
period of time. For reasons previously noted I discredit his testimony that he
did not mention the Huffman conversation to Weaver. Again, his testimony
was marked by evasiveness, inconsistencies, and a pronounced uncertainty in
demeanor.
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 5, 1973
2:30 Meeting at Company Office
We are having this meeting today because this
afternoon we learned that the UMW has been talking
with a few of you people about unionizing this job. I am
standing here with your Super. and Ass't. Super. to give
you our position on this matter.
Many of us have seen this job progress, first thru the
selling of coal to Pittston, the confrontation with the
Dept. of Natural Resources and the lack of enough
equipment to do the job properly.
To talk about that for just a moment, we have placed
all new equipment on this job, with the exception of the
grader, we are furnishing you uniforms and very good
hospitalization and life insurance policy.
As all of you know we have committed ourselves to
increase your salaries early next year and as we have
discussed in the past several months, we intend to set up
a profit sharing plan. This salary increase and profit
plan will be put in as soon as the coal preparation plant
is constructed and we start our overseas orders.
To be perfectly honest with you, and to not pull any
punches the coal orders that we are presently filling are
of a very short duration and we do not have any
assurances as to how long they are going to see the
cleaning plant built and in operation and we all need to
be working, towards that day.
Since the spring of this year all of us here worked
together to build the finest surface mining project in
Barbour County and one of the best in West Virginia.
Your supervisor has worked with you and has
worked you times that I am sure you would have been
sent home from other jobs due to bad weather.
As owners of this company, Mike and I ask you to
delay any more action about unionizing this company
and to give us a chance to show you what we can do,
once the overseas shipments of coal starts to move.
Unionizing this company at this time will create a
hardship that will have an effect on all of us.
We are progressing and we ask you to allow us to
show you and your families what can be accomplished
without big company influence or big company money.
I believe we can, by working together, go as far as we
want to go.
Thank you,
Jack L. Keister
At the end of the meeting Keister asked for comments.
Employee Francis Wilson volunteered the observation that
anyone who did not like his job and did not like it being a
nonunion shop could leave. There is some limited uncorrob-
orated testimony to the effect that Keister interjected that he
"felt the same way." I credit Keister's denial. Several
employees testified without contradiction that Tiano inter-
jected, during the speech, a comment that if the plant were
organized or went union it would or might "break" the
' There is no allegation in the complaint with respect to this statement, and
no amendment was offered during or afler the hearing.
I Nuzum's prior experience involved independent subcontracting work
wherein he operated a dozer and performed landscapping work, and also on
Company, and that he and others would lose their invest-
ment.'
D. The Terminations of Employees Nuzum and Shifflett
Charles Nuzum was hired by Mel Steininger and entered
on duty on August 1, 1978. Prior to his hiring he had
engaged in several conversations with Steininger at Steining-
er's office or at the tipple site. On one occasion approximate-
ly 2 months before his hiring he discussed with Steininger
Respondent's plans for constructing the coal preparation
plant. Nuzum told Steininger of his past employment
experience, told him of the ownership of his own dozer and
welding equipment, and inquired as to whether Steininger
wanted to lease his equipment. According to Nuzum,
Steininger promised to respond at a future date, inasmuch as
he did not know the starting date of the construction of the
coal preparation plant.
According to Nuzum, Steininger engaged in a discussion
with him on his hiring date wherein Steininger indicated that
he intended to use Nuzum as a truckdriver, but inasmuch as
the company truck had just become inoperable he requested
Steininger to bring his chainsaw and to commence clearing
the coal preparation plantsite by cutting down trees. Any-
where from 7 to 10 acres of timberland required clearing.
Nuzum cut the timber, hauled it with his own pickup truck
and stacked it, and burned timber and brush by igniting it
with diesel fuel and at times, when it was wet, adding diesel
fuel and old vehicle tires. Nuzum was assigned at various
other times to other tasks such as picking slate, i.e.,
segregating the useable coal from extraneous materials, and
hauling fertilizer, powder, and primer for fuses, which he
had done for approximately a week.6
Steininger testified that he never discussed Nuzum's
qualifications upon hiring him. I find this testimony improb-
able and unconvincing. Steininger conceded that he did in
fact interview or at least talk to Nuzum on several occasions
prior to actually hiring him. He conceded that Nuzum told
him about his saw and his welding equipment, yet Steininger
insisted that Nuzum did not tell him of his qualifications for
operating a saw, a dozer, or a welding machine. It is
extremely unlikely that Nuzum, who had applied for a job
several times prior to being hired and who discussed the
equipment which he owned, did not also set forth the
various qualifications that he had which might enable him to
get a job. I therefore credit Nuzum that his qualifications
and abilities were discussed in depth.
Steininger testified that Nuzum did indeed engage in other
job functions for Respondent including picking slate, but
that he did so on occasions when other employees were
absent. Steininger explained that it is necessary to haul coal
from the strip site to the tipple 17 miles away. At the time of
the hearing Respondent did not haul its own coal but rather
subcontracted the work. However, at the beginning of the
job it did at least in part haul its own coal until early
November, when both of its trucks became inoperable.
one occasion operated a dozer for a coal operator for the specific object of
retrieving a machine that had been buried. He further had experience in the
construction of preparation plants at a strip job where he utilized his welding
equipment. Nuzum testified that by trade he is a machinist, i.e., a welder.
378
KEISTER COAL COMPANY, INC.
Nuzum reported for work on December 4 at 7 a.m. and
engaged in general labor work in cleaning out drains along
the roadsite. Apparently, 2-Y inches of rain had fallen over
the weekend. According to Nuzum, Leo Wilmouth, who had
direct supervision over him, approached him about 9 a.m.
and told him that he could not use him for the rest of the day
because it was too wet at the "bottom," i.e., the location of
the coal preparation site. That is to say, he told him it was
too wet to clear brush. Wilmouth testified that he did not
supervise Nuzum, but that Steininger supervised him.
Wilmouth testified that he worked at the strip, not at the
coal plant preparation site, and did not observe Nuzum. At
first Wilmouth testified that he did not recall having a
conversation with Nuzum in December and did not recall
sending him home early. Then he testified that he may have
sent Nuzum to the office on December 4. Then he admitted
that he did tell Nuzum that it was too muddy at the strip site
to clear brush. However, he also testified that he did not
know exactly where the preparation coal plantsite was.
Clearly Nuzum was the far more certain and credible
witness.
After the 9 a.m. conversation on December 4 Nuzum
proceeded to the tipple to see if there was any work available
there, and to look for Kenneth Shifett, but he found that
Shifflett had left for his home. He testified that he observed
the tipple foreman, Virgil Smith, and employees Hunt, Evix,
Shaffer, and Rodney Fournash at the tipple. He also
observed thereafter Jack Keister and Mike Tiano accompa-
nied by Jeff Nelson, a new employee. Virgil Smith told
Nelson to get a hardhat to start picking slate. Nuzum left for
home.' Smith did not contradict Nuzum.
Steininger testified with a great deal of uncertainty that
Nelson was hired as a safety director in mid-October, but he
was not sure of his date of entry on duty.' Steininger testified
Nelson was assigned to odd jobs including picking slate for a
week or so prior to the layoff of Nuzum, and also for a week
or so after his layoff. He explained that Nelson had been
previously employed by the United States Bureau of Mines
in Denver, Colorado, and that he was assigned to picking
slate because no office was ready for him until January 1. He
further testified that it is not unusual for salaried personnel
including himself and Jack Keister to pick slate. Respon-
dent's director of personnel, Clarence Coffindaffer, testified
that Nelson was hired after December 5.
On December 5 about 7 a.m. Nuzum appeared at the strip
site and engaged in a conversation with Wilmouth. Accord-
ing to Nuzum, whom I credit, Wilmouth told him to remain
at the site while Wilmouth went into the office to speak to
Steininger in order to discover what was going on down at
the coal preparation site. Nuzum waited for about 45
minutes in his pickup truck. Wilmouth thereafter came
down the road and engaged in a conversation with him,
wherein he told Nuzum that because of 2 days' rain there
was no work for him because the bottom area was too wet
and a dozer could not be brought in that area without
sinking into the mud. He asked for Wilmouth's telephone
number and after receiving it promised to telephone him
when work was ready to proceed. He further told Wilmouth
' Virgil Smith testified that during Thanksgiving week 1978 Nuzum had
been employed picking slate.
to keep checking back, and that work would be available as
soon as the weather cleared.
On prior occasions when it rained it did not interfere with
Nuzum's work because, as he testified without contradic-
tion, he utilized diesel fuel and old tires in order to ignite the
moist brush. He also testified that on one occasion Wil-
mouth told him that he did an outstanding job with respect
to the clearing of the plantsite.
Steininger testified that it was he who terminated Nuzum
during the first week of December, that he could not recall
whether it was on December 4 or 5. He testified that he
terminated Nuzum because of the weather, because the trees
were "done," and there was no other work available for
Nuzum while the ground was drying out. Steininger's
generalized testimony seems to imply that one of the reasons
for the termination of Nuzum was that "95 percent" of the
plantsite had been cleared, and there was no more work for
Nuzum in clearing. Yet he testified that the weather
inhibited Nuzum's continuation of his clearing work. Stein-
inger did not appear to be very clear as to what precisely was
the reason for the termination of Nuzum. In any event, he
conceded that he did not tell Nuzum that he was terminated
or fired but that it was he himself who told Nuzum that he
was being "laid off' because it was "too wet" for Nuzum to
continue clearing the site. He conceded that he gave no
further explanation to Nuzum at the exit interview. Clearly,
Nuzum was not recalled thereafter. At one point Steininger
testified that only a neglegible amount of nonclearing
construction work has been accomplished at the plant
preparation site since Nuzum's termination, that work was
performed by himself and other employees, and that no new
employees were hired to perform that work. Then he
testified that he had no expectation to recall Nuzum as of the
date of the hearing, and that there was no work available for
Nuzum at the tipple or at the strip site. He testified that even
if he had tipple or strip work available he could not use
Nuzum, who did not possess a surface miner's card as
required by the State of West Virginia applicable code. He
testified that Nuzum had only performed work at the tipple
as a fill-in employee for absent employees, and that Respon-
dent could have been fined had there been a state inspection
and had it been discovered that Nuzum was employed at the
tipple.
Nuzum testified that at least 2 acres of timber remained
standing as of December 5 as well as a pile of timber and
brush of the dimensions of 150 feet by 30 feet by 15 feet that
required burining. Steininger at one point testified that all
the trees were down. At another point he said that 5 percent
of the clearing work remained to be done; i.e., that 5 percent
of the timber remained standing. He testified that there had
been no clearing work performed subsequent to the termina-
tion of Nuzum. He testified on cross-examination that the
plantsite is still too wet and has remained so from December
5 through April 11, 1979, except on occasions when it has
been frozen. Yet he further testified that in January he and
other employees laid a cement slab for the foundation of the
coal preparation plant of the dimensions of 50 by 50 feet by 6
inches, and that this slab was poured in January 1979. His
access to the slab was by way of a dirt road. Although he
Nelson's personnel folder incidates a duty entry date of November 30.
379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that he had no intention of recalling Nuzum as of
the time of the hearing he did not explain what his intentions
were with respect to the final clearing of the 5 percent of the
timber that remained standing or whom he intends to use
with respect to that project. Although he testified that the
employment status of Respondent is saturated, and that
Respondent has no plans to expand its facilities, he testified
that upon completion of the coal preparation plant Respon-
dent will hire new employees who will have to be specifically
trained by Respondent and sent for special schooling at
Respondent's expense.9
Kenneth Shifflett was hired in September 1978 by Mel
Steininger. He was assigned to the work of driving a tractor-
trailer and hauling coal. Thereafter, through no fault of
Shifett, his truck was demolished as a result of an accident
caused by a flaw in the rig's mechanism. Respondent's
second truck also became disabled.
Shimett's truckdriving duties did not last for more than
several days. Steininger then assigned him to general
laborers' duties at the tipple picking slate or working on the
crushing machine or performing various other odd jobs at
which he worked for a period of 3 or 4 weeks. Steininger
then asked him whether he could operate a dozer. Upon
receiving an affirmative response Steininger assigned him to
a backfilling job for the Scott Coal Company. It appears that
Scott required some filling to be performed pursuant to its
obligation under the land reclamation program. Respondent
agreed to perform the work for Scott as an accommodation.
This job lasted for several weeks until the dozer which
Shifflett was operating broke down on or about November
29 at which point he was assigned to the tipple to pick slate
for -% days. Thereafter, he was assigned to stripping work
for 1-Y days.' Although Steininger testified that neither
Shifflett nor Nuzum was "qualified" to perform work as a
mechanic's helper, Shifflett's testimony is uncontradicted
that he was assigned to tasks whereby he assisted the
mechanics for a 2-week period between October and early
November.
Kenneth Shifett reported for work on December 4.
Virgil Smith, the tipple foreman, assigned him to the task of
greasing and refilling the machinery. Part of this task
involved pumping fuel into drums which, in turn, was used
to provide fuel for the conveyor belt. Shifflett testified that
Mel Steininger entered the area and engaged in a conversa-
tion with Smith, not within earshot of Shifflett. He testified
that subsequently Smith called him over and told him that
there was no work available for him that day, as they were
going to "turn down the crusher." According to Shiffiett,
Smith asked him where he resided and asked also for his
telephone number. Shifflett testified that he had never been
sent home early in the day before, and that there were
several occasions when he was retained while other employ-
ees were sent home. On those occasions either Vincent Smith
or Mel Steininger had assigned him to work on the tandem
dump truck."
With respect to the claim that Nuzum did not have the appropriate
surface strip mining certificate, the question arises as to how Respondent was
aware of that fact in view of Steininger's testimony that he did not discuss
Nuzum's qualifications prior to his hiring.
"' Steininger's testimony as to Shimett's ability to operate a dozer is
confusing. He testified that Shimett operated a dozer for 3 weeks at the Scott
Shifflett testified that he reported for work on December 5
and asked Virgil Smith whether there was any work for him
that day. Smith responded that he did not know but asked
Shifflett to wait for Steininger. When Steininger arrived,
according to Shiffiett, he told Shifflett that he was cutting
down the backfilling job and then told Shimett to pick up his
paycheck at 10 a.m. Several times after that Shifflett
contacted Respondent and inquired as to whether there was
work available. In mid-December he telephoned Virgil
Smith and asked if there was work and was told that there
was none. Late in December he engaged in a conversation
with Steininger at the office of Respondent, and he asked
whether Steininger had any idea when he might be able to
return to work. Steininger responded: "We're in court with
the NLRB right now and I don't have any idea." The
foregoing account of the events leading up to the termination
of Shimflett is based on his testimony, which is not contra-
dicted by Virgil Smith. In fact, Smith corroborated Shifett
to the effect that Shifflett was assigned work by him
including a variety of jobs including picking slate, loading
cars, filling in for employees, dropping cars, working on the
"track," and "a little bit of everything."
Again, Steininger was confused and uncertain as to the
date of the layoff of Shifflett as he was with respect to the
layoff of Nuzum. Steininger testified in a very cryptic
fashion that he laid off Shifett and merely told him that he
had no job for him. He testified that the reason he laid off
Shifflett was because it rained all the previous weekend, and
the job at the backfill was not accessible. He further testified
that he had no other job available for Shifflett. In cross-
examination Steininger testified that he told Shifflett that the
reason for his layoff was the bad weather. He testified that
the Scott Coal Company ultimately found another person or
persons to complete the backfill job sometime in January or
February 1979. He testified that it was too muddy between
December 4 and February for anyone to gain access to the
backfill site with heavy equipment. Steininger testified that
there were occasions when Shifflett's machinery broke down
and Shifflett was sent home early in the day. However, he
conceded that there were other occasions when Shifflett's
machinery broke down and Shimett was assigned to picking
slate, and that last occurrence was on November 29. At that
time he had sent Shimett to the tipple to work. I do not find
Steininger's testimony in this regard convincing. The only
specific occasions he alluded to in his entire testimony with
respect to the breakdown of equipment being utilized by
Shifflett do not indicate that Shifflett was sent home. Thus,
when Shimett was originally hired to drive a truck and the
truck broke down Shifflett was assigned to the tipple work. I
find Shifett's testimony much more convincing and inher-
ently probable than that of Steininger, and I conclude that
on prior occasions Shifflett was not sent home early in the
day, but rather it was Steininger's practice to find work for
him to do rather than to cause Shifflett lack of employment.
Steininger testified that he never inquired of Shiffiett as to
whether Shifflett possessed the necessary surface miner
coal site. Yet he testified that he observed Shimett operating a dozer on an
occasion, not explaining where or when this occurred, and that in his
"opinion" Shimett could not "handle the job." He gave no explanation.
" A crusher is a device that is composed of a conveyor belt which feeds coal
into a size-reduction machine.
380
KEISTER COAL COMPANY, INC.
certificate. He testified that Shimflett did not volunteer any
information as to whether he possessed such certificate. As a
matter of fact, Shifett did possess the required certificate.
Steininger testified, however, that Shifflett and Nuzum were
not qualified to perform the work of employees who were
hired subsequent to their termination and/or layoffs. Mike
Neely was hired on February 5 as a dozer operator on or
about the same time John Jordon was hired by Respondent
as an end-loader operator. Also hired on February 26 were
Carl Fresa as a foreman and Obert Ware on April 9, 1979, as
a mechanic. On or about December 12, 1978, employee
Rosco Hitt entered on duty as a mechanic's helper and as an
asistant to the master mechanic.' Neely has 12 years'
experience as a dozer operator, and John Jordon has past
experience as an equipment operator. Both have certificates
from the State of West Virginia.
As in the case of Nuzum, Steininger testified that he sees
no possibility or expectancy of an opening for Shifett in the
foreseeable future. He testified that even if two laborers were
to be discharged or were to quit he would not replace them
by recalling Shifflett or Nuzum because he is overstaffed and
has no plans to expand. He offered no explanation as to why
neither Shifflett nor Nuzum would not be qualified for
training for employment at the coal preparation plant. On or
about December I or 2 Steininger discharged Dennis
Haddix, a mechanic's helper or "greaser"; i.e., a greaser of
machinery. Steininger gave no explanation as to why neither
Nuzum nor Shimett would be qualified to perform the task
of a greaser; i.e., an individual employee whose duties
include the greasing of machinery and the refilling of oil in
the motors which operate the machinery.
Shimett testified without contradiction that on December
4 John Davis, the loader operator, was absent from work.
No one requested that Shifflett operate the in-loader. Also
on December 4 employee Dave Wilson hurt his back and
was not allowed by Virgil Smith to perform his normal
duties of picking slate. Neither Shimett nor Nuzum was
requested to pick slate on December 4. Furthermore, it is
Shifflett's uncontradicted testimony that no supervisory
personnel ever extended to him any adverse comment as to
the work that he had performed for Respondent. Steininger
did not deny Shifflett's testimony with respect to Shifflett's
numerous attempts to seek additional employment and the
response he received from Steininger. With respect to
Shifett's termination, one other employee worked on the
backfilling job with Shifflett for the land reclamation project,
Carol Winans. Carol Winans was not laid off either on or
after December 4.
E. Events Subsequent to the Termination of Nuzum and
Shifflett
On December 6 a meeting was held by Jack Keister at the
strip site with a group of employees. Wilmouth testified that
the meeting was arranged pursuant to a request from
employees Tom Evix, Mike Skidmore, and others including
Perry Weaver, who had come to Wilmouth and requested
that Keister speak to them. This purportedly took place the
day after Keister's speech. According to Wilmouth, he spoke
' Hitt replaced Dennis Haddix, an alleged discriminatee whose situation
will be discussed below.
to Keister and Steininger, and Keister agreed to talk to the
employees. A meeting of employees was held between Jack
Keister, Leo Tiano, Mel Steininger, and several employees
on the strip job near the "second pond." Included among the
employees were Mark Winans, McLean, Prichard, Poe, and
Perry Weaver. Weaver denied that he requested any such
meeting. Keister did not testify as to how this meeting got
started. On cross-examination Wilmouth testified that he did
not talk to Skidmore, Evix, or Weaver at all on December 6
or 7. I conclude that the meeting was not called at the
instigation of the employees.
Several employees testified as to the substance of what
Keister stated. Their testimony was not contradicted by any
respondent witness. Essentially two different versions of the
employees' testimony are rendered in the record. One
version portrays Keister as telling the employees to forget
about the union activity of the preceeding week, go back to
work, and start fresh, and that nobody would be discharged
as long as he performed his job. The second version is
essentially the same, except that there was no reference to
the Union in haec verba. Thus, the second version has it that
Keister told the employees merely to forget about "last
week" and to return to work, etc. Under either version it is
clear that Keister was referring to the Union and was
requesting that employees forget about their attempt to
organize the Union. By no stretch of the imagination could
this statement be interpreted as a request by Keister of the
employees to forget about his stated opposition to the Union
or about his promises of beneifts as set forth in the speech
the day before. There could be only one thing that he was
requesting them to forget about; i.e., the attempt to organize.
Subsequently on December 6, as David Weaver was
occupied with his job on the strip site, Wilmouth asked him
about his personal reactions to Keister's comments. David
Weaver responded that he was having difficulty making ends
meet at the rate of pay he was receiving, i.e.; $4 an hour.
Wilmouth then told Weaver that perhaps after the coal
preparation plant commenced operation Respondent might
be able to afford to pay him a little more money. On the
same day Wilmouth encountered Perry Weaver as Weaver
was operating the dozer. Wilmouth questioned Weaver as to
whether it was his intention to attend the union meeting
scheduled that night. Perry Weaver responded that he did
not know anything about a union meeting. On December 7
or 8, at the strip site while the two of them were engaged in a
conversation, Wilmouth told Perry Weaver, "I know who
started this union mess, it was no one but that damned
Kenny Shifflett." Sometime in mid-December Wilmouth
questioned employee Mark Winans whether he thought the
union effort to organize the employees would succeed, and
Winans responded negatively. Wilmouth proceeded to ques-
tion Winans further as to how he and fellow employee Ron
Poe were disposed toward the Union. Winans responded
that they were both against the Union.
Allen Evix testified that sometime in the first or second
week of December, following Jack Keister's remarks to the
employees on the jobsite, Evix had occasion to visit Martini's
store, which is located about 3 miles from the jobsite in the
general area of Audrey Park, West Virginia. He testified that
381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while he was in the front parking area he chanced upon
Foreman Wilmouth who was leaving the store. As Wil-
mouth left he called out to Evix stating: "Did the Company
get the right ones by getting rid of Shifflett and Nuzum?"
Evix did not respond, and Wilmouth went on his way.
Nothing further was said. According to Evix, no explicit
reference was made to the Union; however, this was
subsequent to Evix's interrogation on or about December 5
by Wilmouth wherein Evix was interrogated as to whether
he had gone to the union meeting, and Wilmouth had stated
upon an affirmative response: "There goes our Christmas
bonus." Evix was uncertain as to the precise date of this
occurrence; however, he impressed me as being an honest
and straightforward witness. He was certain about what he
heard and did not attempt to e,bellish his testimony in a way
that would strengthen the General Counsel's case. As of the
date of this hearing he was presently employed by Respon-
dent. I perceive no bias in Evix's demeanor, nor was any
evidence adduced nor anything brought out in cross-exami-
nation that would lead me to conclude that he had any
particular motivation to concoct this testimony. Wilmouth,
on the other hand, as he did in much of his testimony under
direct examination, merely denied with a negative response
counsel for Respondent's question as to whether he made
certain quoted statements. On cross-examination he testified
that, although the store is in close proximity to the jobsite,
he did not regularly go to the store. He admitted that he
visited the store in December 1978, but that at the time he
visited only the owners were present. Then he modified this
testimony to state that what he meant to say was that no one
from the jobsite was there when he visited it. For the reasons
previously stated I found Wilmouth to be a particularly
unconvincing witness. I credit the testimony of Evix. I
further conclude that in light of Wilmouth's interrogations
and past statements to Evix and to other employees
concerning the union activity that his remark could have
had only one meaning, i.e., he sought reassurance as to
whether or not the union activists were terminated.
1. The discharge of Dennis Haddix
Vincent Smith, the master mechanic, is the admitted
supervisor of the mechanics, welders, mechanics' helpers
and greasers. Under Vincent Smith's supervision was em-
ployee Dennis Haddix, who entered on duty on November 1,
1978. His duties included changing the oil of the machinery
and lubricating the fittings of the machinery.
Haddix did not engage in any overt union activity prior to
his termination, nor did he engage in any such covert
conduct. During the first week of December, after Keister's
meetings with the groups of employees Smith approached
Haddix on the job and, as Smith has done in the past to
relieve the tedium of work, he asked Haddix to sing a song.
Haddix then accommodated him by singing out loud the
following:
I'm a Union man. I'm a Union man from the day I was
born to the day I die, I'm a Union man.
"A new employee, David Wilson, was hired to replace Haddix. There is no
explanation as to why Steininger did not consider either Nuzum or Shimett
capable of performing greasing work.
Haddix testified that Smith then told him to sing no more.
At that point Haddix stopped singing and turned to fellow
employee Mike Mullins and asked him if he wanted to be the
local union president, whereupon Mullins stated: "No, do
you want to be?" Haddix jokingly responded: "Yes." Smith
did not contradict Haddix but merely testified that he did
not become angered upon hearing the song. He testified that
he considered the whole thing as a joke. Haddix testified that
he intended it as a joke, behaved in a humorous manner, and
was just "clowning around."
On December 12 Haddix was discharged. Smith testified
that he had become dissatisfied with Haddix's work because
he neglected his duties. Smith testified that he corrected
Haddix several times and told him that it was important for
him not to miss the greasing of all the fittings. Smith testified
that it was critical for Haddix to perform his work properly
because Respondent was understaffed and did not have
"enough men to go around," that it could not afford to
doublecheck everything that Haddix supposedly greased.
Smith testified that he recommended to Mel Steininger that
Haddix be discharged shortly before his actual discharge. He
testified that the recommendation was unrelated to Haddix's
vocalization of prounion sentiments.
Steininger testified that he observed Haddix loafing on or
about December 1, that is, sleeping on the job at 1:30 p.m.,
whereas the lunchbreak which started at 12 ended at 12:30
p.m. Steininger testified that he woke up Haddix and told
him to return to work. Steininger thereafter testified that he
terminated Haddix for not performing his job functions. He
testified that he advised Haddix that he had just inspected a
piece of equipment, and that Haddix had missed greasing all
the fittings. According to Steininger, Haddix responded that
he just could not get to them, and Steininger insisted that he
expected all the fittings to be greased. Both Smith and
Steininger testified that Haddix's predecessor had been
similarly discharged for inadequate job performance. On
cross-examination Steininger testified that he discharged
Haddix a week or 10 days after he had found him asleep and
on an occasion when he found that a machine had not
properly been filled with oil. On direct examination he
referred solely to the failure to perform maintenance duties
as the cause of the discharge. On cross-examination he
further expanded on Haddix's alleged failure to refill oil on
three separate occasions. However, he conceded that he did
not personally warn Haddix but left that up to Supervisor
Smith. On recross-examination Steininger testified that
normally if he found an employee sleeping on the job he
would discharge him. He then went on to explain that he did
not fire Haddix for sleeping on the job on the spot because
he gave him the benefit of doubt and overlooked it. He
conceded that he did not consider that to be one of the
reasons for the discharge because he was not quite sure
whether Haddix was still on lunch break. Steininger also
testified without controversion that he fired Haddix's prede-
cessor "on the spot" when he (Steininger) came to work one
morning and found that a dozer had not been filled with oil.
He testified that he had received several prior complaints
about that individual's failure to perform his duties."
382
KEISTER COAL COMPANY, INC.' -
Haddix testified that the first time that he had ever been
reprimanded or informed that he had not greased all the
fittings was on December 11, when Vincent Smith pointed
out two grease fittings that he had missed on a tractor. He
denied that he had ever been reprimanded or informed in the
past of a failure to fill a machine properly. He testified that
on one occasion he had volunteered the information to
Smith that he himself had discovered that he did not fill one
machine adequately because of the angle at which it was
parked, i.e., it was not level. Haddix testified that he
corrected the situation immediately. He vaguely implied that
the angle of parking was the fault of the operator and that is
why he "complained" to Smith.
2. The union letter
On or about December 20 Respondent apparently re-
ceived a communication from the Union which referred to
an impending election. The record is silent as to whether a
petition was filed by the Union with the Regional Director
or whether in fact a Board-conducted election was ever held.
However, Wilmouth testified that he did engage in a
conversation on or about December 20 with Perry Weaver
wherein he told Weaver of a letter which had reference to an
election. Wilmouth did not give the substance of the
conversation but merely denied having interrogated Perry.
For reasons already noted I credit the testimony of Perry as
contrasted with the hesitant, unsure, and cryptic testimony
of Wilmouth. Perry testified that Wilmouth, after informing
him of the election notice letter, asked Perry whether he
thought that the Union would "pass." Perry responded that
he would not tell anyone how he would vote, but he knew
how he would vote. Despite counsel for General Counsel's
leading questions it is clear from Perry Weaver's response
that it was his assumption that Wilmouth was questioning
him as to how he would vote. He testified accordingly.
At or about that same period of time, December 20, Perry
Weaver engaged in a conversation with Wilmouth again on
the jobsite, at the "second pond," while they were alone.
Perry asked Wilmouth whether the employees could expect
to receive the Christmas bonus, and Wilmouth responded
that they would not receive the Christmas bonus "due to the
Union." A few days later Wilmouth approached Perry and
told him that they would be getting a bonus at Christmas-
time based on their tenure with Respondent. In fact Perry
did receive a bonus in excess of S 130.
Allen Evix was laid off on January 9. That evening he had
occasion to visit Marini's store. While in the store he again
encountered Supervisor Wilmouth and engaged in a conver-
sation with him. Wilmouth asked him whether he had
attended the union meeting that had been held the previous
night. Evix responded that he was not aware of a union
meeting. Wilmouth then went on to instruct Evix that it
would be "better" for him to "leave well enough alone"
because after February "everything will get better." A day
or so after that Evix had occasion to drive a friend to
Wilmouth's house. As he dropped off his friend Wilmouth
spoke to him from the backyard of his home after nodding to
Evix to come over and talk to him. Wilmouth told Evix that
he would be called back to work, and that he would be
earning more money in February.
On January 9 employee David Hunt was laid off from his
laborer's job. Within 2 days Supervisor Virgil Smith came to
his home and summoned him to return to work. Later that
same day at the tipple Smith engaged Hunt in a conversation
wherein he told him he was not quite sure what job to assign
to Hunt. He had earlier told Hunt that he had instructed
"them" not to lay him off. Subsequently he had assigned
Hunt to picking slate. At or about 9:15 a.m. Smith engaged
Hunt in another conversation wherein he told him that
Respondent had plans to institute a dental clinic and an eye
clinic at the expense of Respondent for employee care. He
further discussed the construction of the coal preparation
plant and told Hunt that the employees would receive a big
bonus, a shower room, a locker room, and parking space at
the new preparation plant. He told him that these benefits
would be instituted after that plant went into production.
Thereupon he asked Hunt if he "knows anything?" Hunt
responded no.
3. The February wage increases
Respondent instituted a wage increase on or about
February 5, 1979. Operators of machinery were raised from
$6.50 per hour to $9 per hour. "Rock" truckdrivers received
a raise from $5 per hour to $7.50 per hour. Laborers were
increased in their wages from $4 to 7 per hour. Several
employees testified that the only raise they had received
prior to that occasion was a 50-cent-per-hour raise sometime
in June.
Jack Keister testified that when he started his Company
he did not have a superintendent, he was the only foreman
and job superintendent. He interviewed and hired the
employees in the spring. With those employees he had
maintained a direct communication until the time that
Steininger was hired as superintendent and Wilmouth
became his supervisor. Upon the hiring of those first
employees Keister testified that he advised them that the
enterprise was just starting out and that he was attempting
to get its "feet on the ground." He told them that if they
stuck with him until after the first of the year he would
attempt to give them all raises. He testified that he told this
to the then nonsupervisor, Leo Wilmouth, and to employees
F. Wilson, J. Davis, Randy Haddix, and others whose names
he could not recall. He testified without contradiction that
as the business progressed he advised the employees of its
progression. He also instituted, in May or June 1978,
hospitalization benefits and a life insurance program. He
told them that the Company was growing, and that they
could expect an increase in wages and benefits. He was
corroborated by Wilmouth, who further testified that Keis-
ter advised him in late November to expect a raise in pay in
early 1979.
Employee McLean, a witness for the General Counsel,
conceded that he had heard rumors among the employees of
an expected pay raise from time to time as well as to a
Christmas bonus and a profit-sharing plan. He testified that
these rumors persisted in October or November. Perry
Weaver testified that he also heard rumors from fellow
employees of an expected wage increase, and that it was the
subject of general conversation among the employees during
that summer. The expectation was that a pay raise would be
383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted at the time that Respondent commenced shipping
coal to overseas customers. However, he testified that the
wage increase was effectuated 3 weeks prior to the actual
first shipment of coal to overseas customers. Keister failed to
testify as to what specific event triggered his effectuation of
the general wage increase on February 5. According to
Keister, his implementation of the wage increase was made
pursuant to the earlier promise to several employees with
whom he had discussed the matter early in their tenure and
prior to the advent of Steininger as superintendent in
midsummer.
F. Analysis and Conclusions, the 8(a)(1) Violations
1. Interrogations
I have concluded above that Respondent did in fact, by its
agents, engage in numerous acts of interrogation of its
employees' union activities, sympathies, and desires. From
the facts found above I conclude that these interrogations
were inherently coercive. No justifiable reason was advanced
by Respondent's agents at the times of the interrogations.
No assurance was given to any employee of lack of reprisals.
I find no need to engage in any further elaboration and
conclude that Respondent violated Section 8(a)(1) of the Act
by coercive interrogations of its employees by the following
acts and conduct: (1) On or about December 3 Supervisor
Wilmouth interrogated employee Mark Winans as to wheth-
er he intended to attend a union meeting. (2) On or about
December 4 Supervisor Wilmouth interrogated employee
Allen Evix as to whether he had gone to a union meeting,
and upon an affirmative response stated: "There goes the
Christmas bonus." (3) On or about December 4 Supervisor
Wilmouth interrogated employee McLean as to whether he
went to a union meeting and further whether he would
"fight" for a union. (5) On or about December 4 Supervisor
Wilmouth interrogated employees Dave Weaver and Randy
Haddix as to whether they attended a union meeting, further
stating that if Jack Keister discovered the union activity the
Christmas bonus would be eliminated. (6) On or about
December 4 Supervisor Wilmouth interrogated employee
Dave Weaver as to whether he attended a union meeting,
further questioned him as to what occurred at the union
meeting, further threatened to discharge employees who
engaged in activity on behalf of the union, and further
threatened to blacklist employees who engaged in union
activity. (7) On or about December 5 Supervisor Wilmouth
interrogated employee Perry Weaver as to whether he
attended a union meeting and as to whether he signed a
union card, further stating to him that he would never
permit the job to go union even if he had to purchase it
himself. (8) On or about December 6 Supervisor Wilmouth
questioned employee David Weaver how he "felt" after
Keister's speaking to him. Within the context of Keister's
statement, which could only have reference to Keister's
position with respect to the union organizing effort, such
questioning clearly constituted an interrogation of David
Weaver's union sympathies. (9) On or about December 6
Supervisor Wilmouth interrogated Perry Weaver as to
whether Weaver intended to attend a union meeting. (10) In
or about mid-December Supervisor Wilmouth interrogated
employee Mark Winans as to whether he thought the Union
would "pass," thereby interrogating him concerning his and
other employees' union sympathies and support. Supervisor
Wilmouth further interrogated employee Winans as to how
he and employee Ron Poe felt about the Union. (11) On or
about December 3 Supervisor Wilmouth interrogated em-
ployee Allen Evix as to whether Respondent got "the right
ones by getting rid of Shiffiett and Nuzum." Within the
context of Wilmouth's other interrogations this constituted
an attempt to elicit from an employee confirmation that the
discharged employees were the union instigators. (12) On or
about December 20 Supervisor Wilmouth interrogated
employee Perry Weaver as whether he thought the Union
would "pass," within the context of a reference to a union
letter regarding an election. Within such context this clearly
constituted an interrogation as to Weaver's knowledge of
other employees' union sympathies and support. (13) On or
about January 9 Supervisor Wilmouth interrogated employ-
ee Allen Evix as to whether he attended a union meeting,
further advising him to "leave well enough alone," and
promised an improvement in benefits after February. (14)
On or about January 10 S'lpervisor Virgil Smith informed
employee Hunt of an impending "big bonus" and other
employment benefits he would receive upon the completion
of the coal preparation plant. After that exposition Hunt was
interrogated as to what he knew. Hunt assumed that Smith
was referring to union activity. In the context of Respon-
dent's obvious campaign and program of coercive interroga-
tion as to the support of its employees for the Union and
within the context of Hunt having been rescued from a layoff
situation by Supervisor Smith and told about the improve-
ments he could expect in the future, such a question as to
what Hunt knew could have only one implied meaning; i.e.,
what he knew about the union organizing effort and the
support of the employees for the Union.
2. Threats
Respondent violated Section 8(a)(1) of the Act by the
conduct of Supervisor Wilmouth, who in the course of
coercive interrogation as set forth above simultaneously
threatened the employees with a loss of Christmas bonus
because of union activity in early December. He repeated
that threat in mid-December when asked by an employee
whether they would receive their Christmas benefit. Addi-
tionally, Respondent violated Section 8(a)(1) of the Act by
the threats uttered by Wilmouth to employees to the effect
that he would fire anyone else "talking union" and by his
threat of blacklisting employees from future job opportuni-
ties.
The aforesaid threats require no comment or discussion.
They are manifestly coercive and violative of the Act.
However, the General Counsel argues and alleges that
Respondent engaged in further conduct consisting of threats
to employees' job security which are also violative of the
Act. These additional areas, however, require some analysis.
In early December employee Hunt informed Foreman
Virgil Smith that the employees were attempting to organize
on behalf of the Union. This occurred as Hunt was entering
the premises and was uttered voluntarily by Hunt, who
spoke to Foreman Smith upon Hunt's own initiative. Smith
384
KEISTER COAL COMPANY, INC.
responded, "Jack Keister will never go Union." That was
the end of the conversation. The General Counsel argues
that such conduct by Smith is violative of Section 8(a)(1)
and cites in support thereof Unimedia Corporation, 235
NLRB 1561, 1569 (1978). In that case, however, the
employer's agent did not limit himself to an expression that
he would not accept the union. His statement was simulta-
neously accompanied by an explanatory remark that the
employer therein could "roll over and die" and emerge in a
different form to avoid the union, and that employee layoffs
had been prompted by a need to raise money to fight the
union. Smith's comment was cryptic, without explanation,
and occurred prior to Keister's speech to the employees.
This was Hunt's first encounter with any agent of Respon-
dent with respect to the subject of union organizing.
Therefore the statement came in the absence of any
background of hostility, at least with respect to Hunt. The
statement itself was ambiguous. Clearly, Jack Keister in
effect constituted Respondent. He was the Company. To say
that Jack Keister will never go union is, in effect, saying that
the Company would never become unionized. The failure for
an employer to become unionized does not necessarily follow
from an unlawful, willful effort of the employer. It may very
well occur as it often does because employees do not choose
to support the union of their own volition. The statement,
therefore, is at most ambiguous. I do not conclude that
within the context of Hunt's experience at that point in time
the statement was coercive or violative of the Act.
The General Counsel alleges that Respondent also violat-
ed Section 8(a)(1) of the Act by threats uttered by Jack
Keister at the time that he gave his speech to the employees.
In particular, the General Counsel relies on the language
therein utilized by Keister as follows:
Unionizing this company at this time will create a
hardship that will have an effect on all of us.
Counsel for General Counsel cites Community Cash Stores.
Inc. 238 NLRB 265 (1978). The Board adopted the
Decision of the Administrative Law Judge, which in turn
rested on several Board Decisions in which the Board
equated the statement that employees would suffer serious
harm in the advent of unionization with a threat to their job
security or other economic well-being."
The Board has found other similar language to have
constituted a threat to employees' job security, i.e., a
prediction of undesirable consequence that occurred within
the context and configuration of unfair labor practices which
impinged on employees' job security. However, the Board
has also found that the statement, "A union would only
make things more difficult for all of us. . ." which con-
tained language setting forth the employer's view on the
disadvantage of a union, constituted merely an expression of
opinion, particularly when the statement was made not in
the immediate context of simultaneous unfair labor prac-
tices. Howard Johnson Company, 242 NLRB 386 (1979).
I conclude that in the context of this case Respondent's
speech does not fall within the sphere of protected free
" See J. P. Stevens d Co., Inc. 167 NLRB 266 (1967); Holly Farms Poultry
Industries, Inc., 194 NLRH 952, 954 (1972); Greensboro Hosiery Mills Inc..
162 NLRB 1275 (1967).
" See Hertzka & Knowles 206 NLRB 191, 194-195 (1973); Marathon Le
Tourneau Company. Gulf Marine Division of Marathon Manufacturing
speech as a mere expression of opinion as to the disadvan-
tages of unionization to an employee. On the face of the
speech itself, without recourse to any background activity by
Respondent, a threat of economic adversity is manifest in the
event that the employees unionized. Basically, in his speech
Keister has told the employees of all the advantages they
enjoy on the job which to this point has not been unionized.
He goes on to tell them to expect future benefits including
wage increases, and a profit-sharing plan to be given at the
time the coal preparation plant is concluded. Then he inserts
a cautionary note that present work orders may be short-
lived. At this point he recites that Respondent's past practice
of supervisors who have created work for employees who
would otherwise have been sent home because of such
conditions as bad weather. At that point the employees are
told to delay their union activities because "unionizing this
company at this time will create a hardship that will have an
effect on all of us." There is no other reasonable conclusion
for the audience of this speech than that, if they unionize,
the aforecited benefits and expectancies will be jeopardized.
That meaning is enhanced by the appreciation of the factual
situation in which Keister made the speech. Keister had
been preceded in his speech by the campaign of coercion and
threats of Supervisor Wilmouth. The speech was followed by
other unfair labor practices. Almost simultaneously two
employees were laid off, never to be recalled. In the course of
the speech Vice President Tiano asserted that unionization
would lead to Respondent's financial disaster. He thus
explicated to the employees in more brutal terms what
President Keister was telling them somewhat more subtlely.
Both acted in concert and both, in effect, told the employees
that unionization would result in economic adversity for
them.
Predictions of the effects an employer believes that
unionization will have upon the company and the employees
are lawful. However, such prediction "must be carefully
phrased on the basis of objective fact to convey an
employer's belief as to demonstrably probable consequences
beyond his control .. .. N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575, 616 (1969). An employer may not
disguise in terms of economic predictions a threat of what he
would do of his own volition."
In this case the speech of Keister, as augmented by the
comment of Vice President Tiano, did not contain an
exposition of objective economic factors which would be
caused by the Union and which would be beyond the control
of Respondent and which would cause the economic
adversity of the Company and its employees. I therefore
conclude, in agreement with the General Counsel, that
Respondent's conduct by the speech of Jack Keister, as
augmented by the comments of Mike Tiano, constitutes a
threat to employees of economic adversity in the event that
they joined or support the Union and thus violates Section
8(a)(1) of the Act.
The final instance of alleged threats concerns the Decem-
ber 6 group meetings of President Jack Keister wherein he
told employees to forget about the prior week and that they
Company. 208 NLRB 213, 222-223 (1974); Jimmy-Richard Co., Inc.. 210
NLRB 802, 804 (1974); Automated Products, Inc. 242 NLRB 424 (1979);
Emerson Electric Company. 228 NLRB 1275 (1977), enforcement granted in
pertinent part 573 F.2d 543 (8th Cir. 1978).
385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would thereupon be safe from discharge except for the
failure to perform their duties. Within the context of the
situation and following Keister's speech to the employees
concerning the union organizing effort, I conclude that
Keister was referring to the union activity of the employees
and such was the reasonable inference of the employees who
heard him make the statement. In effect, therefore, Keister
was telling the employees that they would be safe from
discharge on condition that they forgot about the union
organizing activities of the prior week or, conversely, that
they would be in jeopardy of losing their jobs if they did not
forget about it. I conclude that such a statement constituted
a threat to the employees' job security in the event that they
pursued their interest in union organizing activities, and thus
violated Section 8(a)(l) of the Act.
3. Promising and granting benefits
The General Counsel contends that Respondent, by its
agent Jack Keister, promised employees increased benefits in
wages and profit sharing in his speech to them on December
5 in order to dissuade them from maintaining their interest
in seeking union representation. I credit the testimony of
Jack Keister that he had previously discussed with several
employees whom he had hired at the time of their hire, and
thereafter, his intention to grant them wage increases and
fringe benefits as the Company progressed and developed.
Thus, prior to any union activity a 50-cent-an-hour wage
increase was granted to many employees in June. About
midsummer the employees were given a hospitalization and
life insurance program. I credit his testimony that a wage
increase and a profit-sharing plan were promised them and
would be granted upon the completion of the coal prepara-
tion plant and the commencement of coal deliveries to the
overseas customers at an indefinite date after the first of the
year. Indeed, at least two General Counsel witnesses
conceded that in October and November rumors of the
expectancy of such wage increases were prevalent among the
employees.
I do not agree that Keister's reference to that expectancy
in his speech to employees constituted interference with
employees' rights. However, I do agree that the granting of
the wage increase on February 5 constituted an unlawful
interference with employees' rights for the following reasons.
Keister's speech to the employees pointed out to them that
receipt of a large wage increase and a profit-sharing plan
would come at a point in time dependent upon the
completion of the coal preparation plant and the overseas
shipment of coal. Respondent offered no evidence upon
which I can conclude that the actual granting of a large
wage increase on February 5 occurred pursuant to its
previously established economically founded plan. At the
time of the hearing the coal preparation plant was at least 2
or 3 months away from completion. Employee Weaver
testified that he received a wage increase 3 weeks in advance
of the shipment of any coal to overseas customers."' There is
no evidence that Respondent had engaged in any systematic
practice of granting wage increases of such large proportions
in the past. Certainly the wage increases of February 5 were
" Apparently Respondent made use of a subcontractee in the cleanin or
preparation of coal which enabled it to sell coal overseas. No respondent
inordinate as compared to the 50-cent-per-hour wage in-
creases of preunion activity.
In view of the timing of unusually large wage increases, in
the face of union organizing activity, and in the face of
Wilmouth's announcement to Perry of the imminence of
some election, presumably a Board-conducted election, at a
point in time well in advance of the completion of the coal
preparation plant and the shipment of coal overseas, it can
only be concluded that Respondent's granting of those
benefits at that particular time was for the purpose of
discouraging the employees' union activity and eroding any
support for the Union in a possible election. I therefore
conclude that Respondent's granting of wage increases on or
about February 5 constituted violation of Section 8(a)(l) of
the Act.
Supervisor Wilmouth's conversation on January 9 with
employee Evix at Martini's store in conjunction with his
interrogation of Evix also constituted a promise of unspeci-
fied improvements in working conditions on the condition
that "we just better leave well enough alone," i.e., that
employees not support the union effort. Also on or about
January 10 Foreman Virgil Smith promised employee Hunt
a "big bonus" that all employees could expect to receive as
well as such improvements in working conditions as a
shower room, locker rooms, and parking space. This
promise was made in conjunction with an interrogation of
Hunt as to what he knew, that is, what he knew about the
Union. Implicit in this conversation is the obvious condition
that employees would receive those improvements if they
abandoned their support of the Union. Accordingly, I
conclude that Respondent, by its agent Wilmouth and Virgil
Smith, on or about September 9 and 10 promised its
employees improvements in working conditions on the
condition that they abandon support of the Union, thus
violating Section 8(a)(l) of the Act.
4. Impression of surveillance of union activities
The General Counsel argues that when Wilmouth stated
to employee Perry Weaver on December 5 that he, Wil-
mouth, had been informed about the union meeting and that
he knew who had attended the meeting created the impres-
sion that Respondent engaged in surveillance of employees
at the union meeting. In fact, however, Wilmouth told
Weaver that it was Hoffman, a nonemployee of Respondent,
who had informed him of the identity of persons attending a
union meeting. Wilmouth therefore explained the source of
his information, i.e., a nonemployee and nonsupervisor of
Respondent who volunteered the information to Wilmouth.
I therefore do not agree that Wilmouth's statement created
the impression that Respondent had engaged in surveillance
of employees' union meetings.
5. Promise of promotions
Perry Weaver and Leo Wilmouth had discussed the
subject of a foreman's job opening prior to the union
activity. At that time, according to Wilmouth, he told
Weaver that he knew of no opening, although he considered
representative testified as to the actual commencement date of the shipment of
coal.
386
KEISTER COAL COMPANY, INC.
Weaver to be qualified for the job. Thereafter nothing was
said about a foreman's job until December 5 at a point after
Wilmouth interrogated Weaver as to his attendance at the
union meeting and as to whether he executed a union
authorization card, and after Wilmouth expressed his own
personal antipathy toward the union effort. Within a matter
of hours afterward Wilmouth approached Perry and indicat-
ed to him that there was to be an opening of a foreman's job,
and that the choice was between Perry and another
employee. The timing of that remark was manifestly
calculated to create an expectancy in Weaver's mind that he
would receive a promotion to the foreman's job if he
abandoned his union activity. I therefore conclude that
Respondent, by its agent Wilmouth, thereby violated Section
8(a)(1) of the Act by making a promise of a promotion in
order to discourage an employee's union activities.
G. The 8(a)(3) Violations
1. The discharges of Shifett and Nuzum
Shifflett, with the assistance of Nuzum, was active in
organizing employees of Respondent on behalf of the Union.
The organizing efforts became almost immediately known to
Respondent, and a campaign of harassment by way of
interrogations and threats commenced. Respondent's hostili-
ty towards the union effort was manifest. As is indicated by
Wilmouth's statement to employees, Respondent was aware
that Shifflett and Nuzum were active supporters if not
instigators of the union organizing effort. Within a matter of
days after the initial union meeting both were terminated.
Thereafter, in an act of bravado, Supervisor Wilmouth
declared to an employee "did we get the right ones" in
terminating Shifflett and Nuzum. Wilmouth thus declared
that they had been discharged for union organizing activi-
ties. In rebuttal of the strong inference that is raised upon
this prima facie case, Respondent raises an economic
defense; i.e., these were the two lowest seniority employees
and there was no work available for them. A review of this
defense reveals that it is palpably pretextuous.
The lengthy layoffs of two employees for inclement
weather conditions runs contrary to Respondent's past
practice. Indeed, President Keister declared to employees in
his December speech that one of their employment benefits
was the practice of supervisors in finding work for employ-
ees during inclement weather. The testimonial evidence,
including indeed the admission of President Keister, indi-
cates that past layoffs of employees were extremely short in
duration. For example, when the backfilling job was delayed
because of a breakdown in machinery Shifflett was assigned
to other work. He was engaged in such work immediately
prior to his termination. Nuzuni was, on many occasions,
assigned to tasks other than cutting down trees. Particularly
significant is Respondent's treatment of employee Carol
Winans. Wilmouth testified that Carol Winans informed
him of a union meeting. Carol Winans was utilized to assist
Shifflett on the backfilling job. He was hired the same day as
Shifett. There is no explanation as to why Winans was not
laid off rather than Shifett.
With respect to the actual precipitating cause of termina-
tion Respondent purportedly relied upon, foul weather,
although there is no evidence to contradict Respondent's
testimony of a lengthy rain fall the preceding weekend, there
is no explanation as to why Shifflett or Nuzum was unable to
resume specific tasks other than Steininger's general asser-
tion that the ground was too soggy except for times when it
was frozen during the winter. Such explanation is uncon-
vincing. Steininger does not explain why Nuzum could not
have continued to burn the brush that had accumulated by
the use of old diesel fuel and tires after the rain had ceased.
There is no explanation as to how Steininger and other
employees were able to approach the coal preparation
construction site and pour a cement slab foundation for the
plant at a time when it was supposedly inaccessible to
Nuzum, who used only a light pickup truck. Similarly, there
is no explanation as to why Shifett could not have resumed
the backfilling job when Respondent was able to haul in
cement and other materials for the laying of that cement
slab. With respect to Nuzum, Steininger vacillated in his
testimony as to the actual state of the coal preparation
plantsite with respect to the amount to trees that had been
cleared. Even under his testimony, at least 5 percent of the
clearing remained to be done. Inconsistently, he also testified
that the cutting of trees had been done. Thus, at the time of
the hearing Steininger was not even clear in his own mind as
to the status of Nuzum's work at the time of his termination.
Yet Steininger testified that, despite the fact that both
employees had been told that they were only laid off, and
were lead to believe that they would be recalled, in fact, he
Steininger had no intention of ever recalling either Nuzum
or Shimett.
Respondent contends that there is no work available for
Nuzum or Shifett. Assuming that the weather conditions
eliminated the need for them on backfilling work and
clearing of the construction site, Respondent's contention in
regard to the lack of other work for either Shifflett or
Nuzum is unpersuasive. Superintendent Steininger's testimo-
ny that Respondent was overstaffed is directly contradicted
by the testimony of Supervisor Vincent Smith, who testified
that Respondent was at the time understaffed. Giving
Respondent the benefit of the doubt that Vincent Smith was
referring to understaffing of mechanics, mechanics' helpers,
and greasers, at the very least his testimony meant that there
was a shortage of greasers. Respondent made no effort to
offer the job of a greaser to either Shifett or Nuzum prior to
or even after the termination of Haddix. Respondent hired
new employees in January to operate machinery. Steininger's
testimony as to Shifflett's lack of ability as a dozer operator
was conclusionary, cryptic, and unexplained. He cited no
example in support of that opinion. Moreover, Shifflett
apparently had sufficient ability to be assigned to the
operation of a machine in the backfilling job. There is no
explanation in detailed, cogent terms as to why ShiMett
could not have operated the machines which new employees
were hired to operate. Steininger testified that he had
checked the qualifications of new operators hired and also
inquired whether or not they had surface miner's certificates
as required by West Virginia's state law. He made no inquiry
387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Shifflett as to whether or not Shifflett had a surface
miner's card, which in fact Shifflett did possess." Finally,
there is no explanation as to why Steininger had decided that
Shifflett and Nuzum would never be recalled despite his
expectancy of hiring many additional employees to staff the
new coal preparation plant. He conceded that employees
hired for that job would have to be trained and schooled at
Respondent's expense. Therefore, employment in the coal
preparation plant did not depend upon preexisting qualifica-
tions of employee applicants.'8
Having concluded that Respondent's proffered defense for
the discharge of employees Shifett and Nuzum was
pretextuous in nature and unfounded by the evidence in the
record, I conclude that Respondent discharged Nuzum and
Shifflett because of their known union activities and Respon-
dent's pervasive hostility to that activity, in violation of
Section 8(a)(3) and (1) of the Act.
2. The discharge of Dennis Haddix
As we have seen, President Jack Keister told the employ-
ees that no one would be discharged on condition they forget
about their union organizing activities. Several days after
that instruction Haddix (from his viewpoint) jokingly sang a
prounion song to Supervisor Vincent Smith. Several days
later he was discharged, allegedly for a deficient work
performance. He was told by Steininger, who terminated
him, that he had missed greasing certain fittings. The day
before Smith pointed out to Haddix two grease fittings that
he had missed. Haddix did not deny that he did indeed
neglect to lubricate those two particular fittings on Decem-
ber 11. It is undisputed that Haddix's predecessor was
summarily discharged because he also neglected the fittings.
It is also undisputed that Haddix's predecessor was dis-
charged after receiving several warnings. Therefore, if
Haddix had engaged in similar work deficiencies Respon-
dent's treatment of him would have been in accord with his
past practice.
There is a straightforward credibility issue here as to
whether Haddix should be credited in his testimony that he
was never previously warned about work deficiencies,
contrary to Smith's and Steininger's testimony. Of all three
witnesses I am most impressed with the testimony and
demeanor of Supervisor Vincent Smith. In demeanor he
proved to be candid, responsive, fluent, and objective. He
gave no appearance of intentionally tailoring his testimony
to the advantage of Respondent. For example, he testified
that Respondent was understaffed during Haddix's tenure.
This is in direct contradiction to the testimony of Steininger
and significantly detrimental to Respondent's position with
respect to the discharges of Shifflett and Nuzum. Memoran-
da that he personally maintained reflecting the work
deficiencies of Haddix for the most part preceded Haddix's
only alleged union activity; i.e., the union song. Those
memoranda were dated November 25 and December 5 and 4
and reflected that on those respective dates Haddix failed to
grease certain fittings, overfilled certain machinery with oil
" With respect to Nuzum, although he did not have a strip miner's
certificate Steininger testified that Nuzum was used in the past to work in the
tipple, contrary to the requirements of the West Virginia state code. There is
nothing in the record to indicate that Respondent could reasonably assume
that it was beyond Nuzum's capabilities to obtain a strip miner's card.
(apparently not for the first time), and overfilled the same
machinery again. Vincent Smith was vigorously cross-exam-
ined concerning his memoranda and his direct testimony
and appeared to respond honestly in a straightforward
manner without hesitation and with consistency.
The General Counsel argues that Steininger's first refer-
ence to the failure with respect to overfilling of oil was made
on cross-examination and therefore displays a shifting basis
for the discharge. I do not find the inconsistency as apparent
as the counsel for the General Counsel suggests. Both faults
basically constitute a neglect to perform one's duties
properly. In any event Smith, who recommended the
discharge, and who was Haddix's direct supervisor, testified
explicitly to both areas of neglectful performance. With
respect to Haddix's contrary testimony, I found his demean-
or to be most unsettling and unconvincing. Initially on direct
examination his composure was one of confidence and
assertiveness. However, as direct examination proceeded and
cross-examination narrowed in on his denials of alleged past
reprimands his assuredness disintegrated and he became
uncertain, tense, hostile, aroused, and anxiety ridden.
With respect to the incident wherein Haddix, according to
his testimony, volunteered the information to his supervisor
that he had overfilled a machine because that machine was
improperly parked, I further find his demeanor was uncon-
vincing arid his testimony improbable. Smith credibly
testified, without contradition or rebuttal, that it was part of
Haddix's duties to level a machine prior to draining it and
filling it with new oil. This, according to Smith's uncontra-
dicted testimony, Haddix had done in the past under Smith's
personal observation. Therefore, as part of his duties,
Haddix normally leveled the machine before filling it with
oil. This task is a relatively simple matter of raising the blade
of a dozer so that the machine levels out. As Haddix had
done this in the past it would seem unreasonable for him to
fail to do it with a particular machine, proceed to fill it with
oil, and then discover that it was not level and thereafter
complain to his supervisor.
Accordingly, I credit Vincent Smith and discredit Haddix
with respect to the history of Haddix's work deficiency. I
conclude that Haddix was treated in a nondisparate fashion
as his predecessor had been treated and discharged for
identical reasons. I do not conclude that Haddix's self-
described "clowning around" and singing a union song was
the motivation for his discharge. Such "clowning around" in
any event did not constitute an assertion of support for the
Union but was rather intended and received as a teasing,
frivolous, jibe. Accordingly, I conclude that Haddix's
termination was not violative of Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
" The clearing of the coal preparation site itself did not require a surface
miner's certificate.
388
KEISTER COAL COMPANY, INC.
3. Respondent engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) of the Act
by coercively interrogating employees concerning their own
and their fellow employees' union activities, sympathies, and
desires; by threatening employees' loss of a Christmas bonus,
discharge, blacklisting, loss of job security and other
employment benefits, and economic adversity in the event
that they support or select the Union as their collective-
bargaining representative; by promising individual employ-
ees promotions or improvement in working conditions if
they abandoned support of the Union; by assuring employ-
ees that they would not be laid off if they abandon their
support of the Union and their union organizing efforts; and
by granting employees wage increases for the purpose of
discouraging their support of the Union or selection of the
Union as their bargaining representative.
4. Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(3)
and (I) of the Act by terminating the employment of
employees Charles Nuzum and Kenneth Shifflett on or
about December 4, 1978.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I recommend that it be required to cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
terminated the employment of Charles Nuzum and Kenneth
Shifflett, Respondent shall offer them immediate and full
reinstatement to their former or substantial equivalent
positions, without prejudice to their seniority or other rights
and privileges, and shall make them whole for any loss they
may have suffered by reason of the discrimination against
them. Any backpay found to be due shall be computed in
accordance with the formula as set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977). '
In light of the extensive and pervasive unfair labor
practices it is further recommended that Respondent be
ordered to cease and desist from infringing in any other
manner upon the rights guaranteed to employees under the
Act. Hansa Mold, Inc., 243 NLRB 853 (1979).
Upon the basis of the entire record, the findings of fact
and conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'°
The Respondent, Keister Coal Company, Inc., Belington,
West Virginia, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
" See, generally, Isis Plumbing & Heating Cao., 138 NLRB 716 (1962).
'" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusion, and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) Coercively interrogating its employees concerning
their own and their fellow employees' union activities,
sympathies, and desires.
(b) Coercively threatening employees with the loss of
Christmas bonuses, discharge, blacklisting, loss of job
security and other employment benefits, and economic
adversity in the event that they support or select the Union
as their collective-bargaining representative; and granting
employees wage increases for the purpose of discouraging
their support of the Union, or selection of the Union as their
bargaining representative.
(c) Promising employees promotions or improvements in
working conditions if they abandon their support of the
Union as their bargaining representative.
(d) Assuring employees that they will not be terminated
on condition that they abandon their support of the Union
or union organizing efforts.
(e) Discouraging membership in or activities on behalf of
United Mine Workers of America, or any other labor
organization, by terminating them or otherwise discriminat-
ing against them in any manner with regard to their rates of
pay, wages, hours of employment, hire or tenure of employ-
ment, or any term or condition of their employment.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed them
under the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer Charles Nuzum and Kenneth Shimett immediate
and full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
and make them whole for any loss of earnings they may have
suffered by reason of the discrimination against them in the
manner set forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other documents necessary
and relevant to analyze and compute the amount of backpay
due under this Order.
(c) Post at its place of business in Belington, West
Virginia, including its office at Audrey, West Virginia, and
the strip mine site and its tipple copies of the attached notice
marked "Appendix." 2 ' Copies of said notice on forms
provided by the Regional Director for Region 6, shall be
posted by Respondent immediately upon receipt thereof and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
" In the event that 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 Judgment of
the United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint be dismissed
as to any alleged violations of the Act not found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After hearing at which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice telling our employees that we have been
ordered to do and not to do in the future.
The National Labor Relations Act gives all employees
these rights:
To form, join, or assist labor organizations
To bargain collectively through representatives of
their own choosing
To engage in other concerted activities for the
purpose of collective bargaining or other mutual aid
or protection
To refrain from any or all such activities except as
may be required by a legal agreement between an
employer and the representative of the employees.
WE WILL NOT coercively interrogate our employees
concerning their own or their fellow employees' union
activities, sympathies, and desires.
WE WILL NOT threaten our employees with the loss
of Christmas bonuses or with discharge, blacklisting,
loss of job security or other employment benefits, or
with economic adversity in the event that they support
or select the Union as their collective-bargaining repre-
sentative.
WE WILL NOT promise employees promotions or
improvements in working conditions if they abandon
their support of the Union as their bargaining represen-
tative, nor grant employees wage increases for the
purpose of discouraging their support of the Union or
selection of the Union as their bargaining representa-
tive.
WE WILL NOT assure our employees that they will
not be terminated on the condition that they abandon
their support of the Union or union organizing efforts.
WE WILL NOT discourage membership in or activities
on behalf of The United Mine Workers of America, or
any other labor organization, by discharging or other-
wise discriminating against our employees in any
manner with regard to their rates of pay, wages, hours
of employment, hire or tenure of employment, or any
term or condition of employment.
WE WI.LL NOT in ay other manner infringe on the
rights guaranteed to our employees by the National
Labor Relations Act.
WE WILL offer Charles Nuzum and Kenneth Shif-
flett immediate and full reinstatement to their former
jobs or, if their jobs no longer exist, to substantially
equivalent positions, without loss of seniority or other
rights or privileges, and WE WILL make them whole for
any loss of earnings they may have suffered by reason of
the discrimination against them, plus interest.
KEISTER COAL COMPANY, INC.
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