Kingwood Mining Co.

National Labor Relations Board - Board Decisions

Jul 31, 1967

166 N.L.R.B. 957 (N.L.R.B. 1967)

KINGWOOD MINING COMPANY 957
Kingwood Mining Company and United Mine
Workers of America. Case 6-CA-3782
3. Amend the seventh indented paragraph of the
Trial Examiner's Notice to read as follows:
July 31,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On June 2, 1967, Trial Examiner Herbert Sil-
berman issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent and the General Counsel
each filed exceptions with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the modifications
and additions in the Order set forth below. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
amended herein , and orders that Respondent, King-
wood Mining Company , Kingwood , West Virginia,
its officers , agents, successors , and assigns, shall
take the action set forth in the Triai Examiner's
Recommended Order , with the additions and
modifications indicated below:
1. Amend paragraph 1(f) of the Trial Examiner's
Recommended Order to read as follows:
"(f) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the
Act."
2. Delete the second sentence of paragraph 2(a)
of the Trial Examiner 's Recommended Order and
substitute the following:
"(a) Copies of said notice, on forms provided by
the Regional Director for Region 6, shall, after
being duly signed by the Respondent's representa-
tive , be posted by Respondent for 60 consecutive
days thereafter , in conspicuous places, including all
places where notices to employees are customarily
posted."
166 N LRB No. 113
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed in Section 7
of the Act.
I We find merit in the General Counsel's contention that the unfair
labor practices committed by the Respondent are potentially related to
other unfair labor practices proscribed by the Act, and that the danger of
their commission in the future is to be anticipated from the Respondent's
conduct in the past. As the preventive purposes of the Act will be
thwarted unless our Order is coextensive with the threat, we hereby grant
the General Counsel's request for a broad remedial order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner: Upon a charge
and an amended charge filed, respectively, on November
17 and December 16, 1966, a complaint, dated January
27, 1967, was duly issued alleging that the Respondent
has engaged in unfair labor practices proscribed by Sec-
tion 8(a)(1) of the Act. The complaint, as amended at the
hearing, alleges that during September 1966 Respondent
interfered with, restrained, and coerced employees in the
exercise of their rights guaranteed in Section 7 of the Act
by creating the impression among its employees that the
Respondent was keeping their union activities under sur-
veillance, by engaging in the surveillance of a union meet-
ing which was held on September 21, 1966, and which
was attended by Respondent's employees, by coercively
interrogating employees with respect to their union mem-
bership, activities, and sympathies and those of their fel-
low employees, by threatening employees with discharge
because of their union membership, activities, or sym-
pathies, and by threatening to discontinue its operations
if the employees should select the Union as their bargain-
ing representative. Respondent in its answer generally de-
nies that it has committed the alleged unfair labor prac-
tices. A hearing in this proceeding was held in Kingwood,
West Virginia, on April 6, 1967.1 Thereafter, the General
I At the opening of the hearing Respondent moved for a continuance
because Robert Layman, one of two management officials accused in the
complaint of having engaged in the alleged unlawful conduct, was in a
hospital and unable to attend the proceedings The motion was denied
without prejudice to its renewal at a later stage during the hearing At the
conclusion of the hearing, counsel for the General Counsel moved to
strike the testimony of his witness, Wayne Wilson, and to amend the com-
plaint by deleting from subparagraphs 6(a) and (c) thereof the name of
Robert Layman. These motions were granted. As a consequence, the only
remaining allegation of the complaint which in any manner involves
Robert Layman is subparagraph 6(d) which reads
On or about September 21, 1966, by James Wilkinson and Robert
Layman, at Bruceton Mills, West Virginia, kept meetings of the
Union attended by Respondent's employees under surveillance
In its brief, "Respondent again moves the Trial Examiner to continue this
case until Robert Layman has an opportunity to appear and answer the
charges made against him in paragraph 6(d) of the Complaint, even after
the Complaint has been amended as aforesaid " However, the testimony
relating to subparagraph 6(d) concerns an event in which both James Wil-
kinson and Robert Layman participated and Wilkinson testified fully
about the matter at the hearing. Furthermore, my findings regarding the
incident have been limited to such facts as were admitted by James Wil-
kinson in his testimony In these circumstances Respondent has not been
prejudiced by the unavailability of Robert Layman Accordingly, I hereby
deny Respondent's further motion for a continuance
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel and the Respondent filed briefs with me which
have been carefully considered
Upon the entire record in the case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACTS
1 THE BUSINESS OF THE RESPONDENT
Respondent, a West Virginia corporation, is engaged in
mining coal at Kingwood, West Virginia. During the 12
months preceding the issuance of the complaint, Re-
spondent sold and shipped from its Kingwood, West Vir-
ginia , location coal valued in excess of $50,000 directly to
points located outside the State of West Virginia.
Respondent admits, and I find, that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act
11 THE LABOR ORGAINIZATION INVOLVED
United Mine Workers of America is a labor organiza-
tion within the meaning of Section 2(5) of the Act
111. THE UNFAIR LABOR PRACTICES
The conduct complained of herein occurred during
September 1966 while the Union was engaged in a cam-
paign to organize Respondent's employees. On Sep-
tember 11, an International representative of the Union
met with employees of Respondent at the home of a shop
foreman, William C Shaffer That same evening, James
Wilkinson, vice president and general superintendent of
Respondent, questioned employee Jackson Shaffer at the
latter's work station about the attendance at the meeting
and was informed by Jackson Shaffer that five or six men
had been present.'
The next day Wilkinson had conversation with two
other employees about the meeting. Wilkinson spoke with
Dean Phillips, an oiler on the dragline, while Phillips was
at his machine. Wilkinson asked Phillips whether he had
been at the meeting, Phillips pretended that he did not
know to what Wilkinson was referring. After Wilkinson
mentioned the meeting at Shaffer's home. Phillips denied
that he had been there. In the course of this conversation
Wilkinson said that the Company would discontinue its
Kingwood operations before it would recognize the
Unions Joseph Elliott, who was operating the dragline,
came down from the machine while Wilkinson was still
talking with Phillips. Wilkinson asked Elliott whether he
had attended the meeting at Shaffer's home. Elliott
replied that he had not been there. During their further
conversation Wilkinson said that he would fire anyone
who he learns has signed a union card. Elliott responded
that could not be done: to which Wilkinson replied that he
L Wilkinson testified that several of the men told him about the meeting
on the night that it was held
i Phillips' specific testimony was that Wilkinson said, "Fry (president
of Respondent's parent company) wouldn't join the Union because he
would move his equipment to Pennsylvania first to Somerset "
4 The foregoing is based upon the testimony of Phillips and Elliott
whom I credit Although Wilkinson did not deny that he discussed the
subjects mentioned in the testimony of Phillips and Elliott, his version as
to what was said differs in various respects from the testimony of Phillips
and Elliott However, Wilkinson appeared to he somewhat uncertain in
his recollection of his conversation with these two employees He testified
could fire any employee who had signed a union card so
long as he did not see the employee execute the instru-
ment. Elliott repeated that he did not think Wilkinson
could do that and Wilkinson answered that he could find
a reason to fire any man on the job.4
Later in the month the Union scheduled a meeting for
6 p m on September 21 in the fire hall at the neighboring
town of Bruceton Mills, West Virginia, to which the em-
ployees of the Respondent were invited A notice of the
meeting was sent to all Respondent's employees whom
the union representative believed were in the appropriate
bargaining unit. Respondent's officials learned of the
meeting. On September 20, the day before the scheduled
union meeting, Fred S Shaulis, Respondent's president,
Robert Layman, Respondent's general superintendent,
and Wilkinson had a discussion about the subject. Shaulis
testified that he wanted to ascertain what the attendance
at the meeting would be and the extent of the employees'
interest in the Union. Therefore, it was decided that a
representative of management should observe the meet-
ing. The next evening Wilkinson and Layman drove to
Bruceton Mills and parked their automobile near the fire
hall where they were able to watch the employees enter-
ing the building. They were seen by union representatives
who came to their car and asked them to leave. However,
they refused to leave contending that they had a right to
be where they were. That night Wilkinson reported to
Shaulis that 10 to 15 employees had attended the meeting
and that he did not believe there was any great interest in
the Union on the part of Respondent's employees.
The next day Wilkinson asked Elliott whether he had
signed a union card. When Elliott did not respond Wilkin-
son said, "[y]ou was there. Did you sign one"" Wilkin-
son further said that everybody at the meeting had signed
a card, to which Elliott replied that he did not know
whether or not that had happened.
The incidents described above constitute infringements
of employees' statutory rights in violation of Section
8(a)(1) of the Act It is undisputed that on September 21
Respondent engaged in unconcealed surveillance of a
union meeting attended by its employees. Such conduct
was a patent violation of the Act. "Few propositions are
more firmly embedded in the law of labor relations than
that an employer who spies upon the union activities of
his employees engages in a flagrant violation of the rights
guaranteed by Section 7 of the Act. Such conduct has
been condemned by the Board and the courts since the
early days of the Act, for experience has shown that em-
ployers resort to labor espionage or surveillance for the
purpose of obstructing or destroying employees' self-or-
ganizational rights and activities.",, The thrust of the
testimony of Respondent's officials is that they were in-
nocent of any specific intention to interfere with the em-
ployees' union activities but that they had a legitmate
business reason for wishing to discover the extent of the
employees' interest in the Union. According to Shaulis,
that he only vaguely remembered his conversation with Elliott As I be-
lieve that the testimony of Wilkinson is less reliable than the testimony of
Phillips and Elliott, to the extent that there is conflict between Wilkinson's
version of the conversations and Phillips' and Elliott's versions, I credit
the latter
Wilkinson testified that this remark was "a sort of a joke " "It should
be observed that executives who jest run the risk that those sub-
ject to their power might take them in earnest See NLRB v
Marval Poultry Co , 1nt , 4 Cir , 1961, 292 F 2d 454 " A P Green Fire
BrakCmnpanvv NLRB,326F2d910,914(CA 8)
h Wallace Press, Inc , 146 NLRB 1236, 1238
KINGWOOD MINING COMPANY
the Respondent then was negotiating a contract for the
sale of coal and in estimating its production costs it
wished to inform itself of any potential changes in its
labor picture. This reason does not provide a legally cog-
nizable defense to the surveillance charge. As was stated
in Welch Scientific Company, Inc. v. N.L.R.B., 340 F.2d
199, 203 (C.A. 2), "[i]n essence the company argues that
if its actions were taken in good faith it committed no un-
fair labor practice. . . . [I]f the conduct complained of
otherwise violated Section 8(a)(1) good faith is no
defense. The cases clearly demonstrate that it is the tend-
ency of an employer's conduct to interfere with the
rights of his employees protected by Section 8(a)(1),
rather than his motives, that is controlling." Furthermore,
Wilkinson in his conversations with Phillips, Elliott, and
Jackson Shaffer concerning the union meetings of Sep-
tember I I or 21 purported to reveal to them that he knew
that the meetings had been held and in his further conver-
sation with Joseph Elliott on September 22 he purported
to have information about transactions at the previous
night's meeting. These comments created the impression
that the employees' union activities were being watched
and constitute a further violation of the Act. Regardless
of whether the employer may in fact have engaged in sur-
veillance, employees' rights are subject to the same inter-
ference when the employer creates the impression
through his statements that the employees' union activi-
ties are being scrutinized. Such conduct tends to curtail
employees' lawful participation in union activities by in-
dicating that the employer is anxious to find out about the
union activity which the employees wish to conceal from
him to avoid retaliation. 7
Additional violations of the Act arise from the threats
made by Wilkinson that the Company would discontinue
its operations before it would recognize the Union and
that it would discharge any employees whom it learned
had signed union cards. Such direct threats of reprisals
for engaging in organizational activities are the clearest
form of restraint, coercion, and interference with the
rights granted employees by Section 7 of the Act.
Furthermore, Wilkinson questioned employees as to
whether they had attended union meetings, as to the
number of employees at such meetings, and as to whether
employees at the meetings had signed union cards. In the
light of Respondent's other unlawful activities, particu-
larly Wilkinson's threat that he would discharge aay em-
ployee who had signed a union card, such questioning of
employees constituted coercive interrogation in violation
of the Act. Through his questions to Phillips, Elliott, and
Jackson Shaffer, Wilkinson indicated that he desired to
learn about the union sympathies and activities of the em-
ployees. As it did not appear that the Company then had
any legitimate reason to ferret out such information, the
natural tendency of his interrogations was_"to instill in the
minds of employees fear of discrimination on the basis of
the information the employer has obtained.""
Among the various contentions made by Respondent
in its defense is that Wilkinson discussed the Union with
employees "because they came to him with questions
about the Union." However, the testimony adduced at
the hearing does not show that any of the incidents sum-
marized above were initiated by the employees through
questions to Wilkinson about the Union. Another argu-
United Mme, at & Chemical Corporation , 155 NLRB 1390, 1406
N L.R B . v. West Coast Casket Company, Inc., 205 F 2d 902, 904
(C.A 9)
959
ment advanced by Respondent is that there is not direct
evidence that any employees were discouraged in pursu-
ing their union activities by Respondent 's alleged offen-
sive conduct . However , "[t]he test is not whether the
language or acts were coercive in actual fact, but whether
the conduct in question had a reasonable tendency in the
totality of the circumstances to intimidate ."9 I have con-
sidered carefully the other arguments advanced by
Respondent in its brief and I find no merit to them. Ac-
cordingly , I find that Respondent has violated Section
8(a)(1) of the Act by reason of the conduct summarized
above.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations,
described in section I, above have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in un-
fair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By its conduct described above Respondent has in-
terfered with, restrained, and coerced employees in the
excercise of the rights guaranteed in Section 7 of the Act
and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record in the case, and pursuant to Sec-
tion 10(c) of the Act, I hereby recommend that Respond-
ent, Kingwood Mining Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Spying upon or otherwise engaging in the surveil-
lance of the union activities of its employees.
(b) Conveying the impression of surveillance of the
union activities of its employees by statements to em-
ployees or by other conduct or by requesting employees
to report upon the union activities of other employees.
(c) Expressly or impliedly threatening its employees
with loss of employment or discontinuance of its opera-
tions because of their choice of a collective-bargaining
representative.
9 Carrie Corporation v. N L.R B., 375 F.2d 149 (C.A. 4).
960 DECISIONS OF NATIONAL
(d) Threatening its employees with discharge or other
reprisals if they should join, assist, or support the United
Mine Workers of America, or any other labor organiza-
tion.
(e) Coercively interrogating its employees regarding
their, or other employee's, union membership
(f) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act
(a) Post at its mine in Kingwood, West Virginia, co-
pies of the attached notice marked 'Appendix "10 Copies
of such notice, to be furnished by the Regional Director
for Region 6, after being duly signed by an authorized
representative of the Respondent, shall he posted by
Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to its 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.
(b) Notify said Regional Director, in writing, within 20
days from the date of receipt of this Decision, what steps
Respondent has taken to comply herewith '
10 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the U nited States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in wnting, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
LABOR RELATIONS BOARD
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL NOT spy upon or otherwise engage in the
surveillance of the union activities of our employees.
WE WILL NOT by statements to our employees or
by other conduct give the impression that we have
engaged in the surveillance of the union activities of
our employees.
WE WILL NOT request employees to engage in sur-
veillance of the union activities of other employees
or request employees to report to us upon the union
activities of other employees.
WE WILL NOT threaten to close our place of busi-
ness in Kingwood , West Virginia, or to go out of
business, or to reduce our working force because of
our employees ' choice of a collective -bargaining
representative.
WE WILL NOT discharge or threaten to discharge
or otherwise penalize any of our employees because
of membership in, activity on behalf of, or support of
United Mine Workers of America, or any other labor
organization.
WE WILL NOT question our employees about their
union membership or about the union membership of
other employees.
WE WILL NOT in any ' like or related manner inter-
fere with , restrain , or coerce our employees in the ex-
ercise of the rights guaranteed in Section 7 of the
Act.
KINGWOOD MINING
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1536 Federal
Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania
15222, Telephone 644- 2977.