Kentucky May Coal Co.

National Labor Relations Board - Board Decisions

Apr 27, 1995

317 N.L.R.B. 60 (N.L.R.B. 1995)

60
317 NLRB No. 6
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On January 26, 1995, Administrative Law Judge Robert T. Wal-
lace issued the attached decision. Respondent Kentucky May Coal
Company, Inc., Respondent Double C Construction, Ltd., and the
General Counsel filed exceptions and supporting briefs. Respondent
Kentucky May Coal, Inc. filed an answering brief to the General
Counsel’s cross-exceptions. The National Labor Relations Board has
delegated its authority in this proceeding to a three-member panel.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
There are no exceptions to the judge’s findings about violations
of Sec. 8(a)(1) which occurred prior to the subcontracting of oper-
ations on February 14, 1994.
3 We authorize the General Counsel to seek such temporary relief
or restraining order under Sec. 10(e) as he finds appropriate for the
enforcement of this Order.
Kentucky May Coal Company, Inc.—River Division
and Double C Construction, Ltd. and United
Mine Workers of America. Cases 9–CA–31604
and 9–CA–31912
April 27, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The issues presented in this case1 are, inter alia,
whether the judge correctly found that Respondent
Kentucky May Coal Company violated Section 8(a)(1)
of the Act by interrogating employees, soliciting em-
ployee grievances, and threatening employees and vio-
lated Section 8(a)(3) and (1) of the Act by contracting
out operations and shifting two employees to salaried
positions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as modi-
fied.
ORDER3
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ken-
tucky May Coal Company, Inc., Catlettsburg, Ken-
tucky, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(d) and reletter
the subsequent paragraphs.
‘‘(d) Soliciting grievances from employees and ex-
plicitly or impliedly promising to remedy them during
an organizational campaign.’’
2. Substitute the following as paragraph 2(a).
‘‘(a) Rescind the contract entered into with Double
C Construction, Ltd. on February 11, 1994; if re-
quested by the Union, rescind the unilateral wage in-
creases granted to the employees and reinstate the
wage rates in effect prior to the changes, and bargain
in good faith with the Union over these subjects.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT contract out operations in order to
frustrate and defeat your efforts to be represented by
the United Mine Workers of America or any other
union.
WE WILL NOT discharge, permanently lay off, or
otherwise offer benefits in order to prevent or deter
you from seeking to be represented by the United
Mine Workers or any other union.
WE WILL NOT change terms and conditions of em-
ployment or otherwise discriminate against any of you
for supporting the United Mine Workers or any other
union.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT threaten you with discharge, layoffs,
plant closure, or unspecified reprisals if you choose the
United Mine Workers or any other union as your col-
lective-bargaining representative.
WE WILL NOT say, or create any impression, that it
would be futile for you to choose the United Mine
Workers or any other union as your collective-bargain-
ing representative.
WE WILL NOT coercively ask you to withdraw sup-
port for collective-bargaining representation by the
United Mine Workers or any other union.
WE WILL NOT solicit grievances from you and ex-
plicitly or impliedly promise to remedy them during an
organizational campaign by the United Mine Workers
or any other union.
61KENTUCKY MAY COAL CO.
1 McGinnis, Inc. is not named as a Respondent in the formal docu-
ments and was not represented at the trial. That entity is not further
considered in this decision. (McGinnis, Inc. was mentioned in the
caption.)
2 All dates are in 1994 unless otherwise indicated.
3 By letter dated January 9, 1995, Kentucky May moves to amend
its answer to the complaint by pleading collateral estoppel citing
Frye v. Kentucky May Coal Co., Civ. No. 94–132, slip op. at 1–2,
9 (E.D.Ky. 1994), wherein a district court dismissed the 10(j) pro-
ceeding. Since the critical issue there was substantially different
from that ultimately at issue before this Board, the motion is denied.
See Coronet Foods v. NLRB, 981 F.2d 1284 (D.C. Cir. 1993); NLRB
v. S.E. Nichols, Inc., 862 F.2d 952 (2d Cir. 1988).
4 The General Counsel filed a motion to strike Double C’s brief
because it was postmarked on the due date and failed to contain
transcript citations. No one appears harmed by the cited derelictions,
and the motion is denied.
WE WILL NOT prevent or inhibit you from soliciting
support for the United Mine Workers or any other
union in a legitimate manner and at proper times and
places.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL cancel the contract entered into with Dou-
ble C Construction, Ltd. on February 11, 1994, and WE
WILL, if requested by the United Mine Workers, re-
scind the unilateral wage increases granted to you and
reinstate the wage rates in effect prior to the changes.
WE WILL offer those of you who were laid off on
February 14, 1994, immediate and unconditional rein-
statement to your former jobs or, if no longer in exist-
ence, to substantially equivalent jobs, without prejudice
to your seniority or other rights and privileges pre-
viously enjoyed, and WE WILL make you whole, with
interest, for any loss of earnings and other benefits suf-
fered as a result of your unlawful layoffs.
WE WILL recognize and, on request, bargain in good
faith with the United Mine Workers as your exclusive
representative with respect to rates of pay, hours of
work, or other conditions of employment; and should
any understanding or agreements be reached, on re-
quest of the United Mine Workers, embody the same
in a written and signed instrument; and the appropriate
unit is:
All employees, including weighmen and/or
scalehouse operators, employed at our Boyd
County coal dock and Lawrence County coal
yard, excluding all professional employees, guards
and supervisors as defined in the Act.
KENTUCKY MAY COAL COMPANY, INC.
Carol L. Shore, Esq., for the General Counsel.
Forrest H. Roles and Terrance J. Nolan, Esqs. (Smith,
Heenan & Althen), of Charleston, West Virginia, for Re-
spondent Kentucky May.
Cecil C. Varney, Esq., of Williamson, West Virginia, for Re-
spondent Double C.
Molly Kettler Wade, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. These
cases1 were tried in Catlettsburg, Kentucky, on August 9–11,
1994.2 Charges were originally filed on February 18 and
June 9 and an amended consolidated complaint issued on
July 22.
At issue is whether Kentucky May Coal Company, Inc.
violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act by interrogating, threatening, and coercing employ-
ees about their sympathies toward and activities on behalf of
the Union; by terminating the entire work force and sub-
contracting its dock and coal yard operations to Double C to
avoid unionization; and by subsequently recalling and con-
verting two employees to salaried status to discourage sup-
port for the Union. Double C Construction, Ltd., a claimed
agent of and a joint employer with Kentucky May, is alleged
to have violated the same section by soliciting employees to
revoke authorization cards, by threatening reprisals, and by
granting wage increases and changing other terms and condi-
tions of employment in order to discourage continued sup-
port for the Union. The requested remedy is an order requir-
ing Kentucky May to rescind its contract with Double C, re-
sume operations, and recognize the Union as bargaining rep-
resentative of its employees. Alternatively, the General
Counsel requests an order requiring both Respondents, as
joint employers, to recognize and bargain with the Union.
A proceeding for injunctive relief under Section 10(j) of
the Act was pending at the time of this trial.3
On the entire record, including my observation of the de-
meanor of the witnesses, and, after considering briefs filed
by the General Counsel and separately by Kentucky May and
Double C,4 I make the following
FINDINGS OF FACT
I. JURISDICTION
Kentucky May, a corporation with an office in
Catlettsburg, operates a barge dock in Boyd County, Ken-
tucky, and a coal crushing yard in Lawrence County, Ken-
tucky, from where it annually ships goods valued in excess
of $50,000 directly to points outside the Commonwealth of
Kentucky. Double C, a corporation with an office in South
Williamson, Kentucky, provides employment services for
coal companies and related enterprises; and in connection
therewith annually provides services valued in excess of
$50,000 to various coal companies directly engaged in inter-
state commerce. Respondents admit and I find that they are
employers engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Electric Fuels, in turn, is wholly owned by Florida Power Com-
pany.
6 Verardi’s assertion that his telephone records show no calls to the
dock area around the time in question is not corroborated by any
documentary evidence.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Kentucky May, a wholly owned subsidiary of Electric
Fuels, Inc.,5 produces 5 to 6 million tons of coal annually
at approximately 28 mines in Kentucky. Its River Division
has numerous facilities for the processing and transportation
of coal, including as here pertinent, a ‘‘truck to barge’’ river
dock on the Big Sandy River near Catlettsburg, a coal crush-
ing yard (Belfry No. 5) situated about 10 miles away, a deep
water port in New Orleans, Louisiana, a coal receiving termi-
nal in Cincinnati, Ohio, and terminals on the Kanawha River
located in Marmet, Quincy, and Ceredo, West Virginia, the
latter being acquired in June. Double C was formed in 1993.
It acts as a labor broker typically to nonunion employers in
the coal mining industry.
At pertinent times in 1994, Kentucky May employed ap-
proximately 26 hourly employees on 3 shifts at the Big
Sandy dock and Belfrey yard. Ted Warden was dock super-
intendent and was assisted by three salaried foremen includ-
ing Keith Pettit and John Webb, admittedly agents and super-
visors within the meaning of Section 2(11) of the Act. Dock-
side facilities include a trailer which serves as an office, a
scalehouse where trucks are weighed, and an auger station
where incoming coal is sampled for size and quality. On the
other side of a highway which traverses the dock facility are
several trailers used as main offices.
Near the end of January a group of at least six employees,
including Frank Conley and Glen Pritchard, went into the
dock trailer at about 6:30 a.m. and vociferously complained
to Foreman Pettit about perceived unfairness in the amount
of the production bonus they had just received for the month
of December. Pettit’s initial reaction was sympathetic. He
told them they needed to organize because, otherwise, ‘‘they
. . . was going to keep on . . . shorting us on our bonus.’’
He then challenged Conley to call a union and handed him
a phone book. After a brief discussion, the employees asked
Conley to call a UMW number; and in Pettit’s presence he
attempted unsuccessfully to place the call.
Later that day Conley contacted the Union. A campaign
ensued with virtually all employees being asked to sign cards
reading as follows:
AUTHORIZATION FOR REPRESENTATION
I, the undersigned employee of Kentucky May Coal
Company, River Division, Catlettsburg, KY authorize
the UNITED MINE WORKERS OF AMERICA to rep-
resent me as exclusive collective bargaining agent in all
matters pertaining to wages, hours, terms and condi-
tions of employment. This authorization cancels any
similar authority previously given any other person or
organization.
By February 8, approximately 20 employees signed such
cards.
B. Events of February 9–13
Within the next 2 days Pettit had a change of heart and
both he and Superintendent Warden began to interrogate and
threaten employees regarding their union activities.
On February 10, dockhand Jeff Haynes was present in the
dock trailer while Pettit was talking on the phone to Alfred
Verardi who, as director of operations for Electric Fuels, had
overall responsibility for its Kentucky May-River Division.
After hanging up, Pettit volunteered that Verardi wanted to
know if ‘‘you guys were trying to go union or not.’’ He also
quoted Verardi as saying ‘‘If you . . . try to go union, they
would just shut it [the facilities] down because they couldn’t
afford to go union.’’6 This repetition of a comment by a
high-ranking company executive patently constitutes an un-
lawful threat of retaliation, as alleged in paragraph 7(a)(ii) of
the complaint.
Later that day Pettit approached Haynes and two other em-
ployees (Anthony Smith and John Harris) who were working
out on the dock. None of them wore union insignia, and
there is no evidence that they had otherwise evinced union
sympathies. He told them Warden had asked him to inquire
if you guys want to go union, adding: ‘‘He needs to find
out.’’ All three had signed authorization cards; and one of
them, probably Harris, replied ‘‘Tell him yes.’’ On the same
day employee Timothy Stevens was alone in the scalehouse
when Pettit came in and asked if he was ‘‘going union.’’
When Stevens said ‘‘Yeah,’’ Pettit inquired: ‘‘Have you
thought about it?’’ Again Stevens replied ‘‘Yeah.’’ Without
further comment Pettit turned, got into his truck, and drove
off. Stevens too had not previously declared his union senti-
ments. These interrogations, apparently done at Warden’s be-
hest and intended to probe the extent of union support during
an ongoing organizing campaign, are impermissibly coercive
and violative, as alleged in paragraph 7(a)(i).
Either on February 10 or 11 Pettit had occasion to ride
with Glen Pritchard to Belfrey No. 5. After talking about
union cards being signed, Pettit laughed and said he’d told
Superintendent Warden ‘‘we ought to fire the whole damn
bunch.’’ In light of Verardi’s previously communicated threat
of closure, Pritchard was justified in doubting that Pettit was
merely joking. Here also I find an unlawful threat of retalia-
tion as alleged in paragraph 7(b)(i).
John Riffe is Kentucky May’s customer relations rep-
resentative and also has a role in arranging for blending of
various coals. In the latter capacity he regularly worked with
Lundie Blevans, an hourly employee who sampled and grad-
ed coal on trucks as they arrived on the dock.
On the night of February 9, Riffe telephoned Blevans at
the latter’s home and arranged for Blevans to meet him and
Superintendent Warden at a local restaurant on the following
day. According to Riffe, he made the arrangement because
Warden wanted to meet with Blevans ‘‘in a neutral area’’ to
try to find out what’s going on at the dock.
Blevans, who wore no union insignia and had given no in-
dication of his sympathies, arrived at the appointed time. The
meeting lasted about 15 minutes. Although present through-
out, Riffe said nothing. Warden began by asking if employ-
ees were signing union authorization cards. Uncomfortable,
63KENTUCKY MAY COAL CO.
7 While Warden admits being at the restaurant, he claims he ar-
ranged the meeting simply to help Blevans, ‘‘a happy go lucky
guy,’’ who he perceived as being depressed. He could not recall ever
having met with an employee offsite before this time. Assertedly, he
asked Blevans only about the cause of his depression and Blevans
replied that he was worried about not making enough money. Riffe,
however, testified that Warden asked, ‘‘What’s the problem on the
dock?’’ and that Warden, in response to Blevans’ reply, stated,
‘‘None of us feel we‘re making enough money.’’ He asked Blevans,
‘‘Are there any other problems?’’ Riffe further testified that when
Blevans replied, ‘‘No, just money,’’ Warden told Blevans ‘‘We real-
ly couldn’t afford a raise at that time . . . we’d just have to shut
the dock down.’’
8 Warden testified he was nowhere near Ashland on the day in
question.
9 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 445 U.S. 989 (1982).
Blevans said ‘‘No’’ then immediately reversed himself and
volunteered that he had signed a card. Warden inquired as
to what he could do ‘‘to keep it [the Union] out.’’ Blevans
replied that it was too late, adding that ‘‘we’ve been lied to
too much.’’ There ensued a brief discussion of Blevans’
complaint about low wages. After observing that a raise had
been promised for April, Warden told Blevans that Kentucky
May could not afford to pay out all the extra money unions
require for various funds. The meeting ended when Warden
got up and, before leaving, told Blevans ‘‘I wouldn’t tell
anyone about this conversation.’’7 I find the incident to in-
volve unlawful interrogation, solicitation of grievances, and
an implied threat of closure, as alleged in paragraph 8(a).
On Sunday, February 13, the Union held its first general
organizing meeting at a hotel on Main Street in Ashland,
Kentucky. Sometime prior to the meeting, employee Lloyd
Hall stopped his vehicle for a red light on Main Street about
a block before the front entrance to the hotel. He claims that
on his right waiting for the light to change was a green four-
wheel drive vehicle being driven by Superintendent Warden
who was talking on a cellular phone. When the light changed
both vehicles proceeded to the end of the next block where
Hall made two left turns and parked in the lot of the hotel
while the other vehicle continued down Main Street. Hall
states that the union meeting began about an hour or an hour
and a half later. Even assuming Warden was in the other ve-
hicle,8 I find the evidence insufficient to establish he knew
anything about the union meeting or did anything other than
ride a vehicle past a place where it was to be held. The alle-
gation of unlawful surveillance in paragraph 8(b) is dis-
missed.
C. Subcontracting
Hourly employees arriving at work on Monday morning,
February 14, many wearing union insignia acquired at the
meeting on the previous day, were each given a form letter
signed by Warden which reads as follows:
To enhance economics, better use of the facilities and
improve management of the business, the Company has
decided to contract out the operation of the dock. Effec-
tive today, you are laid off. Because the Company ex-
pects the contracting arrangements to be permanent,
that layoff is permanent also. The Company appreciates
your service. Your final check will be mailed to you on
February 17, 1994, or may be picked up at the office
on that day.
Having received no prior warning, the employees were
confused. Warden and other supervisors directed them to an
office trailer across the road where representatives of Double
C invited them to fill out applications for employment. By
the end of the day all did so, some after conferring with
union officials. Most were hired within the week, others
within the next few months. They returned to work at the
same jobs they had previously performed, under the same su-
pervisors, and under a changed wage/benefit package which
included a slightly increased hourly rate, elimination of ton-
nage bonuses, and different health insurance coverage.
Coming as it did during an organizing drive fraught with
acts (heretofore and hereafter found) manifesting antiunion
animus on the part of Kentucky May management, the con-
tracting out gives rise to a rebuttable inference that it was
motivated by that animus and that the resulting permanent
layoffs and changed terms and conditions of employment im-
posed by Double C are unlawfully discriminatory, as alleged
in paragraphs 11(a) and 13(a). Accordingly, Kentucky May
has the burden of persuasion that the contracting out had a
legitimate nonpretextual motive and would have occurred re-
gardless of the existence of protected union activity.9 Evi-
dence in that regard will be discussed at a later point.
D. Subsequent Events
Amon Mahon is employed by a company identified as
‘‘Black Metals’’ and he is ‘‘sort of’’ the managing director
of Double C, a company he describes as basically a labor
broker for coal mine owners. He was in the trailer office on
February 14 and oversaw the hiring of former Kentucky May
employees. That evening Verardi, Kentucky May’s top exec-
utive overseer, came to him and asked him to ‘‘unhire’’ Ste-
vens and Jim Bush, both of whom had performed ‘‘scale-
house operations’’ (weighing and grading coal on incoming
trucks) for Kentucky May. He explained he’d had second
thoughts and now wanted his own employees to perform
those operations thereby to maintain closer contact with sup-
pliers. Mahon complied and at his suggestion the two indi-
viduals went to see Verardi on the next day. The latter, after
observing that the scalehouse job was now a salaried posi-
tion, offered it to them with a warning that if they declined
he’d hire others who would accept salaried status. Faced with
unemployment, the men agreed. Their duties remained the
same but their overall compensation was higher than before.
Both had signed authorization cards on February 8. As noted
above, information that Stevens had done so had been elic-
ited by Foreman Pettit during an unlawful interrogation.
Representatives of Kentucky May provided no explanation
on this record as to why it chose at that particular time to
create a salaried position out of what had previously been an
hourly wage job. In the circumstances of this case the plain
implication is that the price of their increased compensation
and new management status was relinquishment of union
support and the alternative was unemployment, an iron fist
in a velvet glove approach. I find this violative of Section
8(a)(3) and (1) of the Act, as alleged in paragraph 12.
Shortly after Stevens returned to work on February 16, he
was approached by Pettit, now a Double C foreman with the
same duties as before. Pettit, apparently anticipating a rep-
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The incident is described by each of the employees and their
testimony is substantially the same.
11 Hall had been hired by Double C on February 16 and returned
to work that same day.
12 While Stanley claims to have been unaware of any union activi-
ties until February 22, he was present at the dock on February 14
helping Mahon hire former Kentucky May employees. Asked wheth-
er he saw any of them wearing union insignia that day, he replied,
‘‘I may have, but I didn’t—don’t recall.’’
resentation election, told Stevens ‘‘you would be foolish to
vote for a union . . . [b]ecause you’d just be an unemployed
union man.’’ This clearly implies that continued support for
unionization was futile. The statement, therefore, violates
Section 8(a)(1), as alleged in paragraph 8(b)(ii).
On February 17, laid-off employees Haynes, Glen Pritch-
ard, Donald Dixon, and Charles Carraway arrived together at
the Kentucky May office to turn in equipment and pick up
their last checks per instructions in the letter given them on
February 14. Haynes and Dixon had worked as deckhands on
river barges and had not been hired by Double C because it
lacked insurance for that work. While they were waiting, Su-
perintendent Warden passed nearby and Haynes took the op-
portunity to ask ‘‘Why did you do this to us? What’s going
on? You know that I’ve worked hard . . . [and] bent over
backwards to do good work for the company.’’ When War-
den avoided answering, Haynes heatedly again asked
‘‘Why?’’ Warden replied, ‘‘Well, you boys brought it on
yourselves.’’10 In the circumstances of this case, that com-
ment could refer only to the employees’ efforts to unionize.
Here, too, I find a violation of Section 8(a)(1), as alleged in
paragraph 8(c).
Laid-off employee Lloyd Hall also appeared at the Ken-
tucky May office on February 17 to pick up his check.11
While he was doing so, Foreman Pettit told him ‘‘they was
going to bring in cards for us to disperse the union [drive].’’
When Hall replied, ‘‘I’d have to go with the majority,’’ Pettit
opined ‘‘that might be a bad mistake.’’ The latter comment
is an unlawful solicitation to refrain from engaging in pro-
tected activity, as alleged in paragraph 7(b)(iii).
As president of Double C, Burt Stanley oversees oper-
ations at the Kentucky May dock, and for that purpose he
visits there about once a week. Between February 17 and
early March, he distributed an envelope to employees of
Double C who had been laid off by Kentucky May. The en-
velope was addressed to the Union and contained, together
with a postage, prepaid blank return receipt, a typewritten
note as follows:
UMWA
P.O. Box 2068
Pikeville, KY 41502
(606) 437–7378
I, llll, want to revoke my card I sent you. I want
my privileges back.
llllllll
Signature
llllllll
Date
On handing out the envelope he made a point of telling
each of them he didn’t want to know whether they had
signed cards or what they would do with the envelope. He
explains that he prepared and distributed the envelope after
receiving a telephone call from a person who asked, without
identifying himself, how he could go about withdrawing an
authorization card. He states he prepared the handout by
himself and did not discuss it with anyone from Kentucky
May before distributing it.12
I find this also constitutes an impermissible interference
with employees’ Section 7 rights. Even assuming he received
the anonymous call, Stanley’s gesture went beyond simply
answering a question and rendering assistance to a troubled
employee. He went out of his way to facilitate a wholesale
withdrawal of cards; and despite his assurances of no interest
one way or another in employees’ union activities, the under-
lying message was clear. Having once been laid off for sign-
ing cards they well might infer that failure to withdraw them
would jeopardize their jobs. Accordingly, I find an unlawful
solicitation to withdraw union support, as alleged in para-
graph 9.
A further indication that antagonism toward union support-
ers continued under Double C is manifested in various en-
counters between John Webb, a former supervisor of Ken-
tucky May who continued in that capacity under Double C,
and former Kentucky May deckhand Dixon, who was hired
by Double C Foreman Pettit in early April.
On reporting to work Dixon wore a union badge bearing
the words ‘‘Vote Yes,’’ and his truck bore a bumper sticker
with the same legend. Within a few days someone using a
black marker wrote ‘‘No’’ over the ‘‘Yes’’ while his truck
was parked in the Kentucky May dock area. Irritated, he
placed a spare sticker over the defaced one, walked away for
a short distance, and waited. He saw Webb walk by the
truck, then pause, and stare at the new sticker. Dixon called
out ‘‘Caught you, didn’t I?’’ Webb laughed and admitted
marking up the sticker and also to having torn one off Hall’s
car. Asked whether he laughed along with Webb, Dixon tes-
tified: ‘‘Well, yeah . . . I laughed with him . . . I was mad,
but . . . [you] couldn’t . . . say nothing to your boss, really
. . . [but] I told him not to touch my truck again.’’ I find
a violation of Dixon’s right under Section 7 to solicit support
for the Union, as alleged in paragraph 10(c).
Webb also commented at various times, usually during
lunchbreaks until Dixon was again laid off in mid-May, on
Dixon’s open support for the Union. Among other things,
Webb told Dixon that the Union was out to break the Com-
pany, that he (Dixon) didn’t know what he was getting into
in opposing a big company like Kentucky May, that contin-
ued organizing efforts would result in union supporters being
‘‘all gone,’’ and that if he (Webb) lost his job, ‘‘heads are
going to roll.’’ Finally, and in a fit of anger, he told Dixon,
‘‘You are definitely gone . . . for letting everybody know
where you stand and what you think.’’ The statements con-
vey unlawful threats of loss of jobs and discharge, as alleged
in paragraphs 10(a) and (b).
E. Respondents’ Evidence
Kentucky May contends that its subcontracting of oper-
ations at the Big Sandy river dock and Belfrey No. 5 was
motivated solely by perceived inherent economies and was
not influenced in any way by employees’ efforts to unionize.
65KENTUCKY MAY COAL CO.
13 Carter testified, ‘‘We really didn’t get serious about signing a
contract with . . . [Double C] until the week the thing was signed.’’
Tr. 557–558.
14 Representatives of Kentucky May and Double C were unable to
provide in response to subpoenas any data (correspondence, memos,
drafts etc.) pertaining to the agreement.
15 In this respect I note that none of its other river dock operations
had been subcontracted as of February 11 and that while operations
at the subsequently acquired dock at Caredo were contracted out,
employees there had been represented by the Union just prior to the
subcontracting.
Its parent, Electric Fuels, regularly utilizes the services of
contractors to operate numerous coal mines and its new river
dock at Ceredo. David Carter, senior vice president of Elec-
tric Fuels, explains that subcontracting to small independent
operators offers greater efficiency. In particular, he claims it
insulates against common cyclical fluctuations such as
weather and coal prices, thereby allowing for increased cost
stabilization and also permits better allocation of various li-
abilities that arise from maintenance of a work force such as
workers’ compensation and unemployment.
As indicative of consideration being given to increased use
of subcontracting antedating union organizing efforts, Carter
points to a memorandum dated October 22, 1993, which he
directed to two individuals responsible for coal mining oper-
ations. The document reads as follows:
We need to stabilize and level off our costs. We
should look at each of our mining operations and evalu-
ate whether we should consider hiring a contractor to
operate the coal washing plants and our unit train
loadouts at each division.
Let’s discuss the above proposal at our next profit
center meeting.
If you have any questions, please contact me.
He claims to have discussed the matter ‘‘back and forth . . .
[s]ometime in the winter’’ with the two officials and also
with Verardi.
For his part Verardi, purportedly in response to the above,
sent Carter a form solicitation (a ‘‘Dear Employer’’ letter) he
received from Double C on January 13 with his handwritten
notation, as follows: ‘‘This could be the answer to our goal.’’
On February 8 or 9, and at the request of Verardi, Ken-
tucky May Superintendent Warden met briefly with Double
C Representative Mahon. Warden testified that he broached
the possibility of a labor services contract, but only ‘‘in gen-
eral terms.’’ No contract language or terms were discussed,
and the only accomplishment was to put Mahon in telephone
contact with Carter.
There ensued several long-distance calls between Mahon
and Carter and these were followed up on Friday, February
11, with an evening meeting between Verardi and Mahon at
which two agreements were signed, one relating to the river
dock operation and the other to the nearby coal crushing fa-
cility.13 The agreements in substance were the same and did
not vary significantly from Double C’s ‘‘standard’’ contract
with mining companies.14
Although the agreements provide that Double C is respon-
sible for fixing the compensation of workers, each contains
an appendix which lists hourly rates for various classifica-
tions plus an increment over each rate. The latter represents
adjusted hourly rates (labeled ‘‘costs’’). Under the agree-
ment, Kentucky May agrees to pay weekly the incremental
rate to Double C ‘‘for each hour of straight time and over-
time worked by the Workers.’’ Mahon understands that al-
though Double C is free to pay workers more than the hourly
rates specified, the incremental rate paid it by Kentucky May
remains unchanged absent the latter’s agreement to pay
more. On a number of occasions the appendix was modified
to provide increased incremental rates after Double C in-
creased hourly rates paid to workers.
Under the agreement Double C undertakes to provide li-
ability insurance in specified amounts, and to pay all em-
ployment and related taxes. Also, it assumes responsibility
for worker training with costs being passed on to Kentucky
May. The latter has the right to reject workers, and either
party may terminate at any time without cause on written no-
tice.
Double C had no prior experience in running a river barge
terminal. Its two operating officials, Manager Mahon and
President Stanley, rely principally on former Kentucky May
foreman Keith Pettit to oversee daily operations at the dock
and coal yard and he, in turn, receives instructions from Ted
Warden who continues as Kentucky May’s onsite super-
intendent. The trailer office and telephone used by Pettit are
provided by Kentucky May without charge and, in accord
with past practice, Kentucky May continues to provide vehi-
cle and tool allowances for its former supervisors and me-
chanics who continued in that capacity when hired by Dou-
ble C.
I am not persuaded that Kentucky May would have sub-
contracted operations at the facilities in question on or about
February 11 absent onset of the union organizational activi-
ties there.
Contracting out at those facilities does not appear to have
been seriously considered until the very week union organi-
zational activities began, and it was initiated and accom-
plished in haste after Kentucky May had knowledge of the
campaign. Other than sheer coincidence, no explanation is
offered as to why contracting out of operations at these fa-
cilities was accomplished suddenly and at this particular
time.15 In those circumstances, and in light of the animus
heretofore found, I conclude that the sole motivating factor
was a desire to circumvent and defeat unionization by
lopping off in one fell swoop virtually all its work force.
F. Double C
I find the relationship between Kentucky May, on the one
hand, and, on the other, Pettit, Webb, and Stanley suffi-
ciently close as to constitute the latter agents of the former
at least for the purpose of attributing to Kentucky May the
heretofore described violations of Section 8(a)(1) perpetrated
by them while working for Double C. In particular, I think
it highly unlikely that Double C president, Stanley, under-
took to facilitate employee withdrawal of authorization cards
in a matter ostensibly relating only to the Union and Ken-
tucky May without the latter’s knowledge and consent.
In light of the rescission requirement provided below in
the remedy section, I find it unnecessary to determine on this
record whether Double C is a joint employer as alleged in
the complaint.
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Amounts to be computed on a quarterly basis from the date of
layoff to the date of a proper offer of reinstatement, less any net in-
terim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
17 The absence of a specific union demand for recognition and bar-
gaining does not preclude a remedial bargaining order. See NLRB v.
Daybreak Lodge Nursing & Convalescent, 585 F.2d 79, 82 (3d Cir.
1978); Panchito’s, 228 NLRB 136, 137 fn. 7 (1977), enfd. 581 F.2d
204 (9th Cir. 1978).
18 Although nominally denied by Kentucky May, the unit appears
clearly appropriate. Both before and after the unfair labor practices,
employees at the two facilities shared common supervision, were
interchanged, and performed similar work.
19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
G. Credibility Determinations
In almost every instance I have resolved conflicts in testi-
mony by crediting hourly employees. Their accounts contain
ample corroborative detail, appear unfeigned, and were
unshaken by cross-examination. In contrast, company wit-
nesses typically, and unpersuasively, simply denied ever hav-
ing made statements attributed to them.
CONCLUSION OF LAW
Respondent Kentucky May violated the Act in the particu-
lars and for the reasons stated above, and its violations have
affected, and unless permanently enjoined will continue to
affect, commerce within the meaning of Section 2(6) and (7).
REMEDY
In addition to the customary cease-and-desist order and re-
quirement for notice posting, my Order will require Ken-
tucky May (1) to rescind the contract entered into with Dou-
ble C on February 11, (2) to offer permanent, immediate, and
unconditional reinstatement to all the employees unlawfully
laid off on February 14, (3) to make them whole for any loss
of earnings and other benefits,16 and (4) to recognize and, on
request, bargain with the Union as the exclusive representa-
tive of its employees in the unit designated below in regard
to terms and conditions of employment and, if an under-
standing is reached, embody it in a signed agreement.
Rescission. Restoration of the subcontracted work appears
to be an appropriate and indeed necessary remedy in light of
the severity of the violations found. Compare N.C. Coastal
Motor Lines, 219 NLRB 1009 (1975), enfd. 542 F.2d 637
(4th Cir. 1976); Lear Siegler, Inc., 295 NLRB 857, 861
(1989). It is particularly feasible here since the contract by
its terms is rescindable at will and without notice and the
same employees working under the same supervision have
remained at the facility. Further, in light of Double C’s com-
plicity it can hardly claim ‘‘clean hands.’’ And even if that
were not the case, vindication of the statutory rights of the
employees discriminated against outweighs the economic in-
terest of Double C.
Bargaining Order. Since NLRB v. Gissel Packing Co., 395
U.S. 575 (1969), it has been settled law that authorization
cards signed by employees may serve as the basis of a bar-
gaining order where they reflect majority support for a union
just prior to employer actions which negate any likelihood of
a fair election.17
Such is the case here.
It is undisputed that as of February 8, 20 of Kentucky
May’s 26 hourly employees had signed cards authorizing the
Union to represent them. There ensued a series of unlawful
interrogations and threats of discharge and plant closure.
Then, on February 14, Kentucky May without prior warning
dismissed its entire work force, an action found to be moti-
vated solely by a desire to prevent unionization. The impact
on employees is epitomized by Jeff Haynes’ poignant inquiry
to Superintendent Warden: ‘‘Why did you do this to us?
What‘s going on? You know that I’ve worked hard . . .
[and] bent over backwards to do good work for the com-
pany,’’ and by the latter’s taunting reply ‘‘Well, you boys
brought it on yourselves.’’ See Great Chinese American Sew-
ing Co., 227 NLRB 1670, 1671 (1977), enfd. 578 F.2d 251,
256 (9th Cir. 1978); NLRB v. Townhouse T.V. & Appliances,
531 F.2d 826, 830–831 (7th Cir. 1976).
I find (1) that the following employees of Kentucky May
constitute an appropriate unit for collective bargaining within
the meaning of Section 9(b) of the Act:
All employees, including weighmen and/or scalehouse
operators, employed at Kentucky May’s Boyd County
coal dock and Lawrence County coal yard, excluding
all professional employees, guards and supervisors as
defined in the Act;18
(2) that on February 8 a majority of employees in the unit
selected the Union as their representative for purposes of col-
lective bargaining; (3) that since then the Union, by virtue
of Section 9(a) of the Act, has been and is the exclusive rep-
resentative of the unit for purposes of collective bargaining
with respect to wages, hours, and other terms and conditions
of employment; and (4) that the unfair labor practices found
are so serious and substantial in character that the possibility
of erasing their effects and of conducting a fair election by
the use of traditional remedies is slight, and the employees’
sentiments regarding representation, having been expressed
through authorization cards, would, on balance, be protected
better by issuance of a bargaining order.
Broad Order. Because the serious and egregious mis-
conduct shown here demonstrates a general disregard for the
employees’ fundamental rights, I find it necessary to issue a
broad order requiring Kentucky May to cease and desist from
infringing in any manner on rights guaranteed employees by
Section 7 of the Act. Hickmont Foods, 242 NLRB 1357
(1979).
Except to the extent found, Kentucky May is not shown
to have violated the Act in other ways.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
The Respondent, Kentucky May Coal Company, Inc.—
River Division, Catlettsburg, Kentucky, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about union sym-
pathies, support, and activities.
67KENTUCKY MAY COAL CO.
20 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Threatening employees with discharge, layoffs, plant
closure, or unspecified reprisals if they chose the United
Mine Workers of America or any other union as their collec-
tive-bargaining representative.
(c) Telling employees that it would be futile to choose the
United Mine Workers or any other union as their collective-
bargaining representative.
(d) Coercively soliciting employees to withdraw support
for collective-bargaining representation by the United Mine
Workers or any other union.
(e) Preventing employees from soliciting support for the
United Mine Workers or any other union in a legitimate
manner and at proper times and places.
(f) Changing terms and conditions of employment in order
to deter or divert employees from seeking to be represented
by the United Mine Workers or any other union.
(g) Discharging, permanently laying off, or otherwise dis-
criminating against employees because of their support for,
and activities on behalf of, the United Mine Workers or any
other union.
(h) Contracting out operations in order to frustrate and de-
feat employee efforts to be represented by the United Mine
Workers or any other union.
(i) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the contract entered into with Double C Con-
struction, Ltd. on February 11.
(b) Offer to the employees unlawfully laid off on February
14 immediate and unconditional reinstatement to their former
jobs or, if no longer in existence, to substantially equivalent
jobs without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole, with
interest, for any loss of earnings and other benefits suffered
as a result of their unlawful terminations in the manner set
forth in the remedy section of this decision.
(c) Recognize and, on request, bargain in good faith with
the United Mine Workers as the exclusive representative of
its employees in the appropriate unit with respect to rates of
pay, hours of work, or other conditions of employment; and
should any understanding or agreements be reached, on re-
quest of the United Mine Workers, embody the same in a
written and signed instrument; and the appropriate unit is:
All employees, including weighmen and/or scalehouse
operators, employed at Kentucky May’s Boyd County
coal dock and Lawrence County coal yard, excluding
all professional employees, guards and supervisors as
defined in the Act.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its facilities in Boyd and Lawrence Counties,
Kentucky, copies of the attached notice marked ‘‘Appen-
dix.’’20 Copies of the notice, on forms provided by the Re-
gional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.