L. H. & J. Coal Co., Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1977

228 N.L.R.B. 1091 (N.L.R.B. 1977)

L. H. & J. COAL CO. 1091
L. H. & J. Coal Company, Inc. and United Mine
Workers of America
the Administrative Law Judge 's Order to include an appropriate bargaining
order for the 8(a)(5) violation found herein.
Michael Stromich d /b/a Fort Martin Coal and United
Mine Workers of America . Cases 6-CA-8930, 6-
CA-9411, 6-CA-893 1, and 6-CA-9412
March 29, 1977
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND
WALTHER
On December 17, 1976, Administrative Law Judge
Almira A. Stevenson issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
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 exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, L. H. & J. Coal Company, Inc., Maidsville,
West Virginia, and Michael Stromich d/b/a Fort
Martin Coal, Greensboro, Pennsylvania, its officers,
agents , successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph 2(a) and
reletter the subsequent paragraphs accordingly:
"(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all employees in the appropriate
units set forth above, with regard to rates of pay,
hours of employment, and other terms and condi-
tions of employment and, if an understanding is
reached, embody such understanding in an signed
agreement."
2. Substitute the attached notice for that of the
Administrative Law Judge.
, The Administrative Law Judge found that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by bypassing the Union and bargaining
directly with the employees. To remedy this violation, she ordered the
Respondent to cease and desist from engaging in such unlawful conduct.
However , in drafting the affirmative portion of her Order, she inadvertently
erred by failing to include a bargaining order. Accordingly, we have revised
228 NLRB No. 132
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, lay off, or otherwise
discriminate against any of our employees to
discourage membership in or support of United
Mine Workers of America, or any other union.
WE WILL NOT refuse to bargain in good faith
with United Mine Workers of America, as the
certified exclusive bargaining representative of
our employees in the appropriate units by
bypassing the Union and bargaining directly with
employees; offering employees wage increases in
excess of increases offered through the Union;
promising to recall employees from layoff or to
reinstitute the second shift and increase the
workday if employees abandon the Union; or
informing employees that we will never sign a
collective-bargaining agreement with the Union.
WE WILL NOT threaten that employees will lose
their jobs or that the Respondent will cease
operations if employees select the Union as their
bargaining representative, or to have employees
arrested for lawful picketing.
WE WILL NOT solicit employee grievances or
promise economic benefits to dissuade them from
becoming or remaining members of the Union.
WE WILL NOT engage in surveillance of employ-
ees' lawful picketing, or coercively interrogate
employees about their membership in or activities
on behalf of the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7 of
the National Labor Relations Act, as amended.
WE WILL, upon request, bargain collectively
with the above-named labor organization as the
exclusive representative of all employees in the
appropriate units, with regard to rates of pay,
hours of employment, and other terms and
conditions of employment and, if an understand-
ing is reached, embody such understanding in a
signed agreement. The appropriate units are:
(1) All production and maintenance
employees employed by Michael Stromich
d/b/a Fort Martin Coal at its Fort Martin
Mine near Greenboro, Pennsylvania; ex-
cluding office clerical employees and guards,
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
professional employees and supervisors as
defined in the Act.
(2) All production and maintenance
employees employed by L. H. & J. Coal Co.
Inc. at its strip mine ; excluding office
clerical employees and guards , professional
employees and supervisors as defined in the
Act.
WE WILL make whole the following employees
for any loss of pay they may have suffered as a
result of the discrimination against them, plus 6-
percent interest, between January 12 and Febru-
ary 2, 1976:
Ronald R. Beal
Franklin Cottrell
Randy B. Martin
Richard D. Hartman
Terry Klink
John Baxter Burkovich
Carl A. Frost
Ronald L. Gibson
Thomas H. Moore
Ronald Adamsky
C. David Bierer
Edward K. Born
Paul Burtch
Edward L. Radocay
Billy J. Burkhammer
Gerald A. Crider
Robert L. England
Paul M. Garrison
Jack D. Hawker
Richard Williams
Albert Mikeo
John David Pekar
WE WILL make whole the following employees
for any loss of pay they may have suffered as
result of the discrimination against them, plus 6-
percent interest, from March 31, 1976, until the
dates set opposite their names:
Robert L. England
Billy J. Burkhammer
Edward K. Born
Jack D. Hawker
Ronald Adamsky
Richard Williams
Franklin Cottrell
Terry Klink
Richard D. Hartman
Ronald R. Beal
Kenneth Snyder
April 29
May 10
June 1
July 26
July 26
July 26
July 26
July 26
July 26
July 26
July 26
WE WILL, upon request, offer to all employees
engaged in the unfair labor practice strike full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights
and privileges.
L. H. & J. COAL
COMPANY, INC., AND
MICHAEL STROMICH
D/B/A FORT MARTIN
COAL
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON , Administrative Law Judge:
A hearing was conducted in this consolidated proceeding
at Morgantown, West Virginia, on September 16, 17, and
22, 1976. The original charge in Case 6-CA-8930 was filed
and served on the Respondent, L. H. & J. Coal Company,
Inc., on January 16 , 1976, and amendments to the charge
were filed on February 20 and March 26, and served on
February 23 and March 26, 1976, respectively. The original
charge in Case 6-CA-8931 was filed and served on the
Respondent, Fort Martin Coal on January 16, 1976,
amendments to the charge were filed on February 20 and
March 26, and served on February 23 and March 26, 1976,
respectively. The charge in Case 6-CA-9411 was filed on
July 9, and served on Respondent L. H. & J. on July 12,
1976. The charge in Case 6-CA-9412 was filed on July 9,
and served on the Respondent Fort Martin Coal on July
12, 1976. An amended consolidated complaint and notice
of hearing and an order further consolidating cases were
issued on August 12, 1976 . The amended consolidated
complaint was further amended at the hearing, and duly
answered by Respondent.
Threshold issues are whether or not Respondent Compa-
nies constitute a single employer , and whether or not
Foremen Ira Donley and Clarence Potts are supervisors.
Substantive issues are whether or not Respondent Compa-
nies violated Section 8(aXl) of the National or
Relations Act, as amended, in various respects between
November 1975 and March 1976; violated Section 8(a)(5)
of the Act by refusing to bargain in good faith on and after
July 1, 1976, with the Charging Party Union, which was
certified as the employees ' exclusive representative; and
violated Section 8(a)(3) of the Act by discharging five
employees on January 12, 1976, and laying off 17
employees from January 12 until February 2, 1976, and by
laying off I1 employees from March 31 until various
subsequent dates in 1976. There is also an issue as to
whether or not a strike begun July 12, 1976, is an unfair
labor practice strike.
Upon the entire record, including the demeanor of the
witnesses , and after due consideration of the briefs filed by
the General Counsel and the Respondent Companies, I
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
L. H. & J. Coal Company, Inc., is a West Virginia
corporation engaged in strip mining coal in an area of West
Virginia adjacent to the Pennsylvania line. Michael
Stromich owns 50 percent of the stock and is president of
the corporation. Fort Martin Coal is a proprietorship
wholly owned by Michael Stromich and is engaged in strip
mining an area of Southern Pennsylvania adjacent to the
West Virginia line. The areas mined by the two companies
meet at the state lines.
Michael Stromich is actively engaged in running the two
companies , making important decisions regarding labor
L. H. & J. COAL CO.
relations. Joseph Stromich, Michael's brother, is the
manager of both companies ; his duties include keeping
production records and dealing with management and
employee problems of both. Arch Rose is the superinten-
dent of the operations of both companies, and directs the
employees and the work of both. Employees and equip-
ment are moved regularly and frequently between the two
companies, performing work for both.
These facts show that L. H. & J. and Fort Martin Coal
are to a substantial degree commonly owned by Michael
Stromich; that their operations are integrated; and that
they have common management and centralized control of
labor relations. I therefore find they are a single employer
within the meaning of Section 2(2) of the Act.'
During the last 12 months, L. H. & J. and Fort Martin
Coal shipped coal valued in excess of $50,000 directly to
States other than those in which it was mined. I therefore
conclude that the Respondent Employer is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act and that it will effectuate the policies of the Act to
assert jurisdiction in this proceeding.
H. LABOR ORGANIZATION
The Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
A. Supervisory Hierarchy
Respondent employs a total of approximately 29 em-
ployees who work in 5 coal pits and a shop, throughout an
area estimated to cover 2 or 3 miles from end to end.
Respondent does not deny, and I find, that Michael
Stromich, Joseph Stromich, and Arch Rose are its
supervisors and agents.
As for Clarence Potts and Ira Junior Donley, the record
shows that two meetings of all employees of both
companies were called by management, the first in the fall
of 1975 when Joseph Stromich joined the organization, and
the other on January 9, 1976, which will be discussed in
more detail below. At these meetings, Potts and Donley
were presented to the employees as foremen, and at the
later meeting Joseph Stromich urged the employees to take
their problems to them as they were the first echelon in the
management chain of command.2
Donley described himself as an assistant to Superinten-
dent Rose, and indicated that he and Potts were responsi-
ble for assigning work. Rose testified that Potts and Donley
were not laid off on January 12, 1976, when the other
employees were, because "they were supervisory."
Mechanic Randy Martin testified that Potts rode a
pickup around checking on equipment needing service.
There was testimony by 10 employee witnesses that Potts
and Donley gave them orders and told them what to do;
clean coal, pick slate, where and When to blast, operate and
service certain equipment, assist the blaster or mechanic,
i South Prairie Construction Co., v. Local No. 627, International Union of
Operating Engineers , AFL-CIO, et al., 425 U.S. 800, fn. 3 (1976); Moffitt
Building Materials Company and Lumberman Wholesale Company, 214
NLRB 655, 660 (1974).
1093
start a new cut or bench, repair a road, load trucks, and
move equipment from the Fort Martin to the L. H. & J.
side were specifically mentioned.
The above evidence, which is substantially undisputed,
clearly establishes that Clarence Potts and Ira Donley had
authority, in the interest of the Employer, to assign and
responsibly direct the work of the employees and to adjust
their grievances. I therefore find that they were supervisors
within the meaning of Section 2(11) of the Act.
B. Overall View
Under the leadership of mechanic Randy Martin, dozer
operator Jack Hawker, and highlift operator Franklin
Cottrell, the employees began to discuss the possibility of
union representation in the fall of 1975. On the advice of
Union Representative Burdette Crow, it was decided not to
call a meeting for this purpose until Sunday, January 11,
1976, because of the advent of the hunting season and the
Christmas holidays, and also to see what the Christmas
bonus would amount to. Two days before the union
meeting was held, the Respondent called all employees
together for a meeting with management and supervisors.
Of the approximately 27 nonsupervisory employees, 24
attended the union meeting January 11, and all those
present signed authorization cards. The next day, Monday,
January 12, 5 employees were discharged and 17 were laid
off. A picket line was set up on January 19. The discharged
and laid-off employees were recalled to work on February
2, 1976, and the picket line apparently was abandoned.
The Union filed petitions (Cases 6-RC-7372 and 6-RC-
7373) and on March 29, 1976, elections were conducted by
the National Labor Relations Board in the following
stipulated appropriate units.
(a) All production and maintenance employees em-
ployed by Michael Stromich d/b/a Fort Martin
Coal at its Fort Martin Mine near Greensboro,
Pennsylvania; excluding office clerical employees
and guards, professional employees and supervi-
sors as defined in the Act.
(b) All production and maintenance employees em-
ployed by the L. H. & J. Coal Co. Inc. at its strip
mine ; excluding office clerical employees and
guards, professional employees and supervisors as
defined in the Act.
The Union won both elections. March 31, 1976, 2 days
later, 11 employees were laid off. The Union was certified
by the Board on April 6, 1976, and Respondent met with
union representatives and discussed contract negotiations
on June 2 and 22. Three laid-off employees were recalled in
April, May, and June. The employees struck Respondent
on July 12, and, although recall notices were sent to the
remaining laid-off employees July 26, 1976, the strike is still
in progress.
2 I find , based on the overwhelming weight of the testimony , that Donley
was identified as pit foreman and Potts as maintenance foreman, and not as
L. H. & J. and Fort Martin foremen , respectively, as Joseph Stromich
testified.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Events Prior to January 9, 1976
The complaint alleges that , beginning in November 1975,
Foremen Potts and Donley interrogated employees and
threatened them with cessation of Respondent's operations
if they selected the Union as their representative.
Randy Martin and Paul Burtch testified , without dispute,
that they asked Potts if he would be interested in the Union
as it might have retirement benefits for him, and Potts told
them that Mike Stromich might not be big enough and just
might shut the job down if the employees went union, and
he believed Mike would never go union.
John Pekar and Donley testified about a conversation
they had regarding the Union during the week before
January 9, 1976, in which Pekar asked Donley what would
happen , and Donley said it was hard to tell, Mike Stromich
might sign or he might shut the job down altogether. It is
not disputed that, before January 9, Donley asked Pekar
whether the employees had had a union meeting yet, and
asked employee Gerald Crider if the employees were still
going to have a union meeting over the weekend , adding he
heard about it at a nearby service station.
I find no merit in Respondent's contention that these
remarks were mere conjecture reflecting only Potts' and
Donley's opinions . It is substantially undisputed that
Superintendent Rose made a similar statement to employee
Gerald Crider some months later . In any event, it has
always been recognized that such remarks , made, as here,
by foremen with supervisory authority, constitute implied
threats which coerce employees in the exercise of rights
guaranteed in Section 7 of the Act .3 Indeed, as events were
to prove, the threats were by no means idle ones. I
conclude that by making such threats and by interrogating
employees about union activities , Respondent violated
Section 8(a)(1) of the Act.
D. Management-Employee Meeting January 9, 1976
The complaint alleges in effect that at this meeting
Respondent interrogated employees and solicited griev-
ances and promised economic benefits in order to dis-
suade them from supporting the Union.
The meeting was held on Friday afternoon and was
attended by employees of both companies . Arch Rose and
Joseph and Michael Stromich all spoke . Joseph Stromich
outlined policies he intended to follow with regard to work
rules, and urged the employees to follow the management
chain of command and bring any problems they had to
Foremen Potts and Donley first and to Rose and himself
only if they were not available . Joseph Stromich then
passed around questionnaires for the employees to fill out.
The questionnaires were numbered consecutively and
sought answers to inquiries about attitude toward jobs and
changes desired in working conditions.
Michael Stromich then addressed the employees telling
them, among other things , an allegory about having to
eliminate bad eggs to avoid spoiling good eggs . It being
payday, checks and W-2 forms were distributed . Michael
Stromich advised the employees they would receive an
increase in their next paycheck effective January 1, 1976.
He then asked them to write "Yes" at the end of their
questionnaires if they wanted a union and "No" if they did
not want a union . Joseph Stromich collected the question-
naires as the employees left the meeting.
Management witnesses testified they had no knowledge
of union activities or of the impending January 11 union
meeting, but assembled the employees only because the
coal market was bad , the men no longer seemed to be
interested in their jobs , they had developed bad work
habits and become restless , and because of thievery at the
jobsites . Michael Stromich said his bad-egg allegory had
reference to stealing . He admitted this was the first time he
informed the employees of the pay raise , but insisted he
had disappointed them by not giving an expected increase
in November 1975 and had instructed Superintendent Rose
at that time to promise the increase would be forthcoming
the first of the year . Rose testified he so informed most all
the men as instructed . As for his interrogation of the
employees' union sentiments , Michael Stromich testified he
had in mind a possible conflict with employees of a
trucking subcontractor who were members of a laborers'
union , and he also wished to compare a pension plan he
had in mind for his employees with the Union's plan. He
added that although he quickly glanced through the
completed questionnaires after the meeting and discovered
that the employees seemed to be interested solely in more
money, he was not aware of the union sentiment vote (13
yes, 6 no, 6 undecided or no answer) until Joseph Stromich
told him a week later.
I find no merit in any of these defenses . All the factors
relied on to explain the timing of this meeting were alleged
to have developed over a period of time , and none account
for the choice of a date 2 days before the first employee-
union meeting . I fmd that management was well aware of
the employees ' union activities , and of the union meeting
scheduled for January 11, based on Potts ' and Donley's
knowledge, on record evidence that Foreman Donley
asked Spike Mikeo on January 12 if the employees had
held their union meeting the day before , and on the polling
of the employees about their union attitudes. Moreover, I
do not credit Superintendent Rose that he previously
promised a pay increase , as employees witnesses testified
either that they heard about the increase for the first time
on January 9, or that they had heard only rumors from
other employees of a possible increase . Nor do I credit
Michael Stromich that his bad-egg allegory had reference
to thievery, as he clearly was more concerned with the
unionization of his employees.
I find that the poll, in the context in which it was
conducted and without observing the standards required in
Struksnes Construction Co., Inc ., 148 NLRB 1368 ( 1964), as
well as Foreman Donley's subsequent interrogation of
employee Mikeo on January 12, constituted coercive
interrogation of employees . I also find that the solicitation
of desired changes in working conditions, the invitation for
employees to bring their complaints to their foremen and
through the management chain of command, and the
announcement of pay increases in the absence of any past
pattern or practice or expectation by employees , and in the
3 Riley Stoker Corporation, 223 NLRB 1146 (1976). Accord: Textile
Workers Union of America v Darlington Manufacturing Co., 380 U.S 263, fn
20(1%5)
L. H. & J. COAL CO. 1095
context of an unlawful poll of union sentiment, were
intended, and reasonably understood, to be for the purpose
of dissuading employees from supporting the Union. I
conclude that Respondent thereby violated Section 8(a)(1)
of the Act as alleged in the complaint.
E. Discharges and Layoffs January 12, 1976
The complaint alleges and the answer admits that on
January 12, 1976:
(1) The following employees were discharged:
Ronald R. Beal Richard D. Hartman
Franklin Cottrell Terry Klink
Randy B. Martin
(2) The following employees were laid off:
John Baxter Burkovich Billy J. Burkhammer
Carl A. Frost Gerald A. Crider
Ronald L. Gibson Robert L. England
Thomas H. Moore Paul M. Garrison
Ronald Adamsky Jack D. Hawker
C. David Bierer Richard Williams
Edward K. Born Albert Mikeo
Paul Burich John David Pekar
Edward L. Radocay
(3) All the above employees were recalled to work on
February 2, 1976.
Michael Stromich testified that he made the decision to
effect the discharges and layoffs Saturday afternoon,
January 10, for the following reasons : Friday night he
discussed the meeting and what had "been going on for the
past month or two" with his brother Joseph and another
brother, and the feeling was "There definitely had to be
changes made. The men had no interest in their jobs."
Saturday morning he had a long discussion with Superin-
tendent Rose , mainly about the morale of the men, after
which he decided "to get rid of the five men and shut the
job down for several weeks because the weather was cold,"
and because he had only a spot market .4
Michael Stromich and Arch Rose justified the discharges
on the following bases: Klink had torn the rear end out of a
truck in October 1975; had a bad attitude; engaged in
horseplay; continuously knocked everything; and would
not give a straight answer to anything. Hartman was
nicknamed "Shadow" by the employees because he
followed them around and talked when he was supposed to
be picking slate, and nobody wanted to work with him.
Cottrell had done good work at first but deteriorated into
habitual tardiness while turning in slips for full time;
loaded dirty coal; and did not care about his job. Beal
failed to keep the drill clean and to grease the machines,
and refused to pick slate or to call in when he took time off
from work. Martin's work had been excellent throughout
the first half of 1975 but then deteriorated; he did not care
about his job; he was habitually tardy; he failed to show up
for scheduled Saturday work; told a foreman what he
could do with a dozer when ordered to fix it; tried to fix a
4 A spot market is based on individual orders as contrasted with a
written contract for delivery of coal on a regular basis.
drill after being told to leave it alone; and he used vulgar
language during the January 9 meeting.
Michael Stromich, Joseph Stromich, and Arch Rose,
testifying from handwritten notes or from memory,
explained the need for the layoff in these terms: In
September 1975 Respondent had cut back from a 10-hour
workday to a 9-hour day with two shifts because the coal
business was off, there were fewer orders for coal, and
Respondent was stockpiling. Even so, from July through
December 1975, Respondent sold less than 50 percent of
the tonnage it had sold during the first 6 months of 1975.
Respondent had no long-term written contract for delivery
of coal and operated entirely on a spot-market basis. There
were no sales in late August. Coal delivered on a spot order
received in late September was criticized for being dirty.
There were no sales in October. In November, a spot order
was obtained for 4,200 tons, but the six night-shift dozer
operators worked only 41 percent of the time; Joseph
Stromich advised laying off the night shift but Michael
Stromich said no, maybe business would improve. The men
were engaged for 20 to 30 percent of their time throughout
the fall of 1975 in make-work ordered by Michael Stromich
and directed by Arch Rose. In December, demand
increased, approximately 15,000 tons were sold and the
night shift worked 65 percent of the time; a $500 bonus was
paid to each employee (contrasted with a $1,000 bonus the
year before). By January, there were 45,000 to 50,000 tons
of coal stockpiled on the premises and in uncovered pits
ready to clean and load, for which the Respondent had no,
orders. Approximately 4,000 tons were sold the first week
in January, but, Michael Stromich said, on January 12, "I
actually had no need for [the men]. The men just were not
performing their duties, they didn't care if they work or
not."
Respondent also presented the testimony of one of its
independent coal brokers to the effect that demand for coal
has been dropping ever since the end of an October 1974
strike of the industry, and that he has not been able to sell
any coal for Respondent recently. Fred Johnson, of
Rosedale Coal Company, testified that a stockpile of
Respondent's coal big enough to fill 18 to 20 barges
carrying 900 to 950 tons each remained at his barge landing
from September 1975 until March 1976 without being sold.
The record shows that after these employees were
recalled February 2, Respondent continued its 9-hour
workday, with five or six men on a night shift.
The General Counsel subpenaed Respondent's monthly
sales reports to the States of West Virginia and Pennsylva-
nia. Based on these reports, Respondent's monthly,
quarterly, and bi-yearly total and average tonnage sales
were as follows: 5
1975
Jan 12,643
Feb 11,643
Mar 6,376
Total 30,662
Avg. Monthly 10,220
5 Figures for the first 6 months of 1975, only, include a small unkown
amount of coal produced but not sold.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apr 11,950
May 14,674
June 18,379
Total 45,003 75,665
Avg. Monthly 15,001
July 12,700
Aug 9,144
Sep 7,729
Total 29,573
Avg. Monthly 9,857
Oct 0
Nov 5,772
Dec - 18,005
Total 23,777 53,350
Avg. Monthly 7,926
1976
Jan 13,293
Feb 7,635
Mar 18,352
Total 39,280
Avg. Monthly. 13,093
Apr 20,414
May 10,152
June 13,233
Total 43,799 83,079
Avg. Monthly 14,599
I have no doubt that the five discharged employees were,
at least to some extent, guilty of some of the rather
awesome list of alleged transgressions compiled against
them . Indeed , the alleged transgressions are so many and
extend over such a long period of time that one naturally
wonders at Respondent's forebearance. For not only did
Respondent keep such allegedly practically worthless
people on its payroll, but, it contends, it made work it did
not need for them and other employees to do 9 hours a day,
on two shifts, for months on end.
As one cannot believe that, what, then, was the true
reason for the discharges and the layoffs, which were
linked both by Michael Stromich in his testimony and by
Respondent 's simultaneous recall of them all?
In assessing the economic reason advanced , I can see
little materiality in the testimony regarding economic
conditions in the coal industry generally, or in the fact that
there was unsold coal on the premises as we have in
evidence the actual sales records of Respondent itself upon
which, in my opinion, its economic defense must stand or
fall. Although those records bear out management's
testimony that there were no sales in October, they
contravene other testimony . For example, during the last
half of 1975, Respondent sold closer to 70 percent than to
less than 50 percent of the amount sold during the first half
of that year. And, moreover, Respondent sold 110 percent
of that amount during the first half of 1976, when the
discharges and layoffs occurred. To go back to late 1975,
the only month in which there were no sales, was, as
Respondent said, October, more than 2 months before the
layoffs. In November, as it indicated, sales resumed, and
December was its second best month of the year when it
sold only a relatively few tons less than it did in its best
month. Moreover, according to Joseph Stormich, Respon-
dent sold 4,000 tons the last week before the layoff - more
than half the total sales during an entire month in March
and November 1975, and more than half the average
monthly sales in the last quarter 1975.
In sum, it appears that Respondent 's sales declined
considerably during the third quarter of 1975 from its high
the quarter before, and reached bottom the first month of
the fourth quarter . After that , however, business began to
pick up, attaining sales close to its best month of the year in
December, and continuing to improve during the first week
of January. This picture shows only too plainly that it was
not Respondent's economic condition which triggered its
virtual shutdown of operations on January 12, 1976. What
did trigger it may be discovered in the employees' negative
reaction to the January 9 meeting during which, I have
found, Respondent attempted to dissuade them from
supporting the Union by unlawful interference, solicita-
tion, and promises, clearly demonstrated by Randy
Martin's outspoken protests and by the prounion responses
to Respondent's unlawful poll. I find, therefore, that the
reasons advanced by Respondent were pretexts , and that it
discriminatorily discharged 5 employees and laid off 17
employees on January 12, 1976, to discourage membership
in and activity on behalf of the Union, and I conclude that
it thereby violated Section 8(a)(3) as alleged in the
complaint.
F. Events of January 19, 1976
The complaint alleges in effect, and Respondent denies,
that on or about January 20 Joseph Stromich and Arch
Rose engaged in surveillance and threatened with arrest
employees who were picketing unlawfully.
On Monday, January 19, pickets appeared at the three
entrances to Respondent's site with signs stating, "Manage-
ment Unfair To Employees," and "Company Unfair To
Employees." Randy Martin testified that Arch Rose
appeared at the Fort Martin entrance early on January
19-
and he said do you boys want to break this up now? He
said you know this is against the law. Do you want to
leave now, or are you going to leave when I get the
State Police out here.
Martin continued that shortly before 8 o'clock Rose
returned with Joseph Stromich, and Stromich asked what
L. H. & J. COAL CO. 1097
the men were doing there. When they pointed to their
picket signs, Stromich "then took pictures of us, our signs
and then left."
Jack Hawker testified that Arch Rose came to the L. H.
& J. entrance where he was picketing that morning-
and he said, you guys better get out of here, he said,
what you are doing is illegal, he said, I can have the
state police to have you runof ... and later on he and
Joe Stromich came down together, and Joe was taking
pictures of the signs and the men.
The above testimony was corroborated by Franklin
Cottrell, Richard Hartman, and Ronald Adamsky, the
latter two adding that they also observed Rose jotting what
appeared to be the license numbers of the pickets'
automobiles.
Rose denied telling the pickets that it was illegal to strike,
and said he merely told them he would call the state police
if they blocked the entrances to the property or stopped
traffic as that was illegal.
Joseph Stromich conceded he took photographs on the
first day of picketing, and presented a photograph of each
of the picket signs. He explained:
My first thoughts, that the men may be in violation, I
didn't know if that was a proper thing for them to do. I
just didn't know, and I took pictures to show what
reasons they were picketing, I took pictures of the signs,
and the men, how they were picketing.
I credit the General Counsel 's witnesses as their
demeanor was more impressive and as I have found Rose
and Joseph Stromich unreliable in other respects. As the
employees were engaged in lawful peaceful picketing, and
as there was no indication of roadblocking or violence at
the time, I find, in the context of other unfair labor
practices, that Respondent's threats of criminal prosecu-
tion,6 and its picture and taking of license numbers 7 were
coercive, and I conclude that it violated Section 8(a)(1) of
the Act.
G. March 26, 1976
The amended complaint alleges, and Respondent denies,
that on or about March 26, 1976, Arch Rose threatened
employees would lose their jobs if they voted for the Union
in the upcoming election.
This allegation is based on the testimony of employee
Richard Williams to the effect that Rose came to the
jobsite on Friday evening before the Board election
between 8 and 10 p.m. while he and others were working
the second shift. Rose had two children in the truck with
him, and he told the men -
he'd been projecting the plan, you know, for a long
range job and that he would hate to see us vote the
union in, because it would eliminate some of our jobs.
I credit Williams over Rose's somewhat half-hearted
denial, as Williams' demeanor was favorable and the
remarks he attributed to Rose are consistent with other
remarks and conduct of Rose's. I find that Rose impliedly
threatened employees with loss of jobs if they voted the
Union in, and conclude that he thereby violated Section
8(a)(1) of the Act.
H. March 31, 1976
The amended complaint alleges the Respondent laid off
11 employees on March 31 because of their union
activities. Respondent contends they were laid off for lack
of work.
As stated above, Board elections were held on March 29,
and the Union won both units. Michael Stromich testified
that he instructed his attorney to inform the Board agent at
the elections that he would have to cut his payroll back
regardless of the election results, and that he himself
offered to show the agent the full pits and stockpiles to
support his position.
The parties stipulated that 2 days after the election
Respondent laid off the following employees, and that it
recalled them on the dates indicated in 1976:
Robert L. England - 4/29
Billy J. Burkhammer - 5/10
Edward K . Born - 6/1
Jack D. Hawker - 6/26
Ronald Adamsky - 6/26
Richard Williams - 6/26
Franklin Cottrell - 6/26
Terry Klink - 6/26
Richard D. Hartman - 6/26
Ronald R. Beal - 6/26
Kenneth Snyder - 6/26
Notice of the layoff asserted that, "The reduction is
caused by economic reasons, no written coal contracts,
numerous pits filled with coal and coal stock piles."
Michael Stromich testified that the reason for this layoff
was, "The spot market for coal and an ample amount of
coal in the pits." Instructed to do so by Michael Stromich,
Rose and Joseph Stromich took photographs which
purport to show uncovered coal in pits and stockpiles on
March 31.
There were 17 employees and 2 foremen who were not
laid off. They were cut to an 8-hour day, and the night shift
was eliminated.
I attach no significance to Respondent's self-serving
notice to the Board agent 2 days in advance of this layoff,
as it could well have been motivated by a determination to
teach the employees a lesson or punish them, whichever
was called for by the election results, by a demonstration of
its economic power. The results, it eventuated, called for
punishment. The only support advanced by Respondent
for its economic defense of this layoff of almost half its
complement was the continued existence of unsold coal on
the premises, which had been there for a long time. As
stated above, the official reports of sales are the truly
significant factors on this issue . They show that Respon-
dent's sales in March had been exceeded only once in the
6 Moffit Building Materials, supra at 656.
7 Larand Leisureles, Inc, 213 NLRB 197, fn. I (1974); Sackett's Welding,
207 NLRB 1030 (1973).
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preceding 14 months and then only slightly. Moreover, its
sales for the first quarter of 1976 had been topped only one
time, in the second quarter of 1975, its peak period. The
second quarter of 1976, when most of these employees were
still laid off, was even better.
There being no correlation between Respondent's eco-
nomic situation and the layoffs, I fmd that there is no merit
in this defense.
As the timing of the layoffs can be accounted for only by
the holding of Board elections 2 days earlier, and in view of
the other unfair labor practices, some of which were
practically identical in nature , I fmd that they were
discriminatorily motivated , and conclude that they violated
Section 8(ax3).8
1. July 1, 1976
The complaint alleges , and the answer denies, that
Respondent refused to bargain in good faith with the
Union as the exclusive representative of the employees in
the appropriate units by bypassing the Union and bargain-
ing directly with employees ; offering pay increases in
excess of those offered the Union ; promising to recall laid-
off employees and to reinstitute the second shift if
employees would abandon the Union; and by informing
employees Respondent would never sign a contract with
the Union.
After the certifications on April 6, the representatives of
the Union met, for the first time, with Michael Stromich
and other management officials on June 2 for negotiations.
International Organizer Steve Nikses testified, without
dispute , that at the first meeting, which lasted about half an
hour, the Unior- presented a contract proposal and
Stromich asked for time to study and make counterpro-
posals for the two units. The second meeting was held on
June 22. Approximately 7 of the Union's 30 proposed
articles were discussed . The Respondent 's counsel pro-
posed five paid holidays, an 8-hour day, and $5.75 an hour
across-the-board . No pension plan was offered. No
agreement was reached on anything.
It is not disputed that on July 1 Michael Stromich
ordered Superintendent Rose to have Randy Martin and
Spike Mikeo service a dozer located some distance from
the mining area; while they were performing the work,
Stromich came by and invited them to meet him at a bar
down the road where he would like to talk to them; the
employees accepted the invitation , and Stromich stood
them to several rounds .9 I credit Randy Martin's account
of the ensuing conversation which was corroborated in
essential part by Mikeo:
Mike said well, what is you guys trouble. He says you
know if you would have come to me, we could have
settled this thing, you didn't have to go behind my back
and like this. And, he said I 'll tell you what I'll do. He
says I will give you boys, or you men six seventy-five an
hour, twenty-five cents pension plan.... He also said
" The relative seniority of laid-off and retained employees , concerning
which there is some evidence and contentions on both sides, is not
significant and therefore plays no part in my conclusions regarding the
Respondent's personnel actions on January 12 or March 31.
9 In view of Michael Stromich 's testimony that none of them was drunk,
that he would never sign a United Mine Workers'
contract . He said we will go back to working the same
amount of hours; the same shifts that were worked
before . He said I will call the laid off men back . He said
it'll be just like it was before.
Mike also asked if we would see the men , see what the
men thought of this offer and possibly set up a meeting
with him. And, I said O.K. we'll do this.
I do not credit Stromich's account as I have not found
him credible as to other matters. Moreover , his implication
that he invited the two employees to the bar and paid for
all those drinks only to fmd out "What all they serviced on
the machine," and that Martin told him "he'd take it back
to the men and see what they had to say and . . . get back
to me," even though Stromich had refused to make any
offers, is illogical and improbable.
Based on the credited testimony of the General Counsel's
witnesses, I conclude that Respondent violated Section
8(a)(5) as alleged.10
J. The July 12, 1976 Strike
On June 12 , 10 days after the first meeting between
Respondent and the union representatives referred to
above, the union organizers , Steve Nikses and Bill Corfont,
called a meeting which was attended by over two -thirds of
the employees . The employees complained about the lack
of progress in negotiating a contract, and all those present
voted to strike . However , the organizers pursuaded them to
wait and let them try further to negotiate before taking
such drastic action . The June 22 negotiating meeting was
held after that, with the results described above.
After Michael Stromich's July 1 conversation with
Randy Martin and Spike Mikeo, as found above, Martin
relayed Stromich 's offers to Jack Hawker and Gerald
Crider, and within a week the information had got around
among the men . The employees became divided about
whether to accept Stromich 's offers or to stick with the
Union . Consequently, a meeting was held July 8 by Union
Organizer Knight, Union Representative Kenneth Yablon-
ski, and the employee committee of Martin , Hawker, and
Crider. The committee members told the union representa-
tives, according to Martin's undisputed testimony, "we
didn't like what was going on. The men were starting to
divide; we had to do something ; ninety percent of the men
were ready to go on strike right now . They said we've taken
a vote, why haven't we went on strike." Yablonski
counseled delay, but the committee "told him that we were
coming out Monday, July the 12th . We had previously
conferred with the men and this was the vast majority
agreed with this." Jack Hawker confirmed that the main
concerns were the slow pace of the negotiations and the
division developing among the men over whether to pursue
Stromich's discussion with Martin or to adhere to the
Union as their representative.
I can find no merit in Respondent 's contention, in its brief, that the
conversation should be disregarded as "whiskey talk."
10 Medo Photo Supply Corporation v. N LR. B,, 321 U.S. 678 ( 1944); Ernie
Grissom Chevrolet, Inc, 168 NLRB 1052 (1967).
L. H. & J. COAL CO.
On a signal from the committee, the employees struck the
Respondent on July 12, and, as stated above, the strike is
still in progress. Ronald Adamsky testified, without
dispute, that no one has crossed the picket line.
This undisputed corroborative testimony proves to my
satisfaction that Respondent's violations of Section
(8)(a)(5) found above played a significant part in the
decision of the employees to strike. I therefore conclude
that it was, and is, an unfair labor practice strike.11
IV. REMEDY
In order to effectuate the policies of the Act, I
recommend that Respondent be ordered to cease and
desist from the unfair labor practices found and, in view of
the nature thereof, to cease and desist from infringing in
any other manner on its employees' rights guaranteed by
the Act. N.L.R.B. v. Entwistle 1Ifg. Co., 120 F.2d 532 (C.A.
4, 1941).
The following affirmative action is recommended for
Respondent's unlawful discharge and layoff of it employ-
ees: (1) Make whole all employees found to have been
unlawfully discharged and unlawfully laid off January 12,
1976, for any loss of earnings they suffered thereby
between that date and the date of their recall, February 2,
1976; and (2) make whole all employees found to have
been unlawfully laid off March 31, 1976, for any loss of
earnings they suffered thereby between that date and their
stipulated dates of recall. All backpay shall be computed as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest at 6 percent a year as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
In addition, it is recommended that Respondent, upon
request, offer to all employees engaged in the unfair labor
practice strike full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent jobs,
without prejudice to their seniority or other rights and
privileges.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 12
The Respondent, L. H. & J. Coal Company, Inc.,
Maidsville, West Virginia, and Michael Stromich d/b/a
Fort Martin Coal, Greensboro, Pennsylvania, its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against employees to discourage membership in or support
of United Mine Workers of America, or any other union.
(b) Refusing to bargain in good faith with United Mine
Workers of America as the certified exclusive bargaining
representative of it employees in the appropriate units by
bypassing the Union and bargaining directly with employ-
ees; offering employees wage increases in excess of
increases offered through the Union; promising to recall
11 Juniata Packing Company, 182 NLRB 934, 935 (1970).
12 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.
1099
employees from layoff or to reinstitute the second shift and
increase the workday if employees abandon the Union; or
informing employees that Respondent will never sign a
collective-bargaining agreement with the Union. The
appropriate units are:
(1) All production and maintenance employees em-
ployed by Michael Stromich d/b/a Fort Martin
Coal at its Fort Martin Mine near Greensboro,
Pennsylvania; excluding office clerical employees
and guards, professional employees and supervi-
sors as defined in the Act.
(2) All production and maintenance employees em-
ployed by L. H. & J. Coal Company, Inc., at its
strip mine; excluding office clerical employees
and guards, professional employees and supervi-
sors as defined in the Act.
(c) Threatening that employees will lose their jobs or that
Respondent will cease operations if employees select the
Union as their bargaining representative, or threatening to
have employees arrested for lawful picketing.
(d) Soliciting employee grievances or promising econom-
ic benefits to dissuade employees from becoming or
remaining members of the Union.
(e) Engaging in surveillance of employees' lawful
picketing or coercively interrogating employees about their
membership in or activities on behalf of the Union.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the National Labor Relations Act, as
amended.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make whole the following employees for their lost
earnings in the manner set forth in the remedy section of
this Decision, plus 6-percent interest, between January 12
and February 2, 1976:
Ronald R. Beal Edward K. Born
Franklin Cottrell Paul Burtch
Randy B. Martin Edward L. Radocay
Richard D. Hartman Billy J. Burkhammer
Terry Klink Gerald A. Crider
John Baxter Burkovich Robert L. England
Carl A. Frost Paul M. Garrison
Ronald L. Gibson Jack D. Hawker
Thomas H. Moore Richard Williams
Ronald Adamsky Albert Mikeo
C. David Bierer John David Pekar
(b) Make whole the following employees for their lost
earnings in the same manner, plus 6-percent interest, from
March 31, 1976, until the dates in 1976 set opposite their
names:
Robert L. England - 4/29
Billy J. Burkhammer - 5/10
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edward K . Born - 6/1
Jack D . Hawker - 6/26
Ronald Adamsky - 6/26
Richard Williams - 6/26
Franklin Cottrell - 6/26
Terry Klink - 6/26
Richard D . Hartman - 6/26
Ronald R. Beal - 6/26
Kenneth Snyder - 6/26
(c) Upon request , offer to all employees engaged in the
unfair labor practice strike full reinstatement to their
former jobs or, if those jobs no longer exists, to substantial-
ly equivalent jobs, without prejudice to their seniority or
other rights and privileges.
(d) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records , timecards,
13 In the event the Board's 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
personnel records and reports , and all records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(e) Post at its mines in West Virginia and Pennsylvania
copies of the attached notice.13 Copies of said notice, on
forms provided by the Regional Director for Region 6,
after being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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.
(f) Notify the Regional Director , in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."