Laddie Coal & Mining Co.

National Labor Relations Board - Board Decisions

Dec 18, 1958

122 N.L.R.B. 553 (N.L.R.B. 1958)

LADDIE COAL & MINING CO. 553
Laddie Coal & Mining Co. and Hugh B. Birchfield . Case No.
10-CA-3099. December 18, 1958
DECISION AND ORDER
On July 30, 1958, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions
to the Intermediate Report, and a supporting brief, and Respondent
filed a reply brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing , and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire
record in the case, and hereby adopts the Trial Examiner's findings
and conclusions, with the following modifications:'
Although the question is not free from doubt,2 we agree with the
Trial Examiner's conclusion that the discharge of employee Birch-
field was not in violation of Section 8 (a) (1) and (3) of the Act,
as alleged. The General Counsel does not dispute that Birchfield
carried a cigarette lighter and smoking materials into the mine
which had been classified as "gassy"-an admitted violation of both
Tennessee and United States mining laws. At all times pertinent,
there was a sign posted over the entrance to the mine, reading
"DANGER-NO SMOKING-MATCHES-OR OPEN LIGHTS,"
and prominent in the employees' bathhouse was a letter by Re-
spondent expressing concern over smoking rules violations. Vice
President Long credibly testified that, on May 21, 1957, 2 months
before the discharge, a death had occurred at Laddie as a result
of a safety violation, and that this death, plus reports of increasing
smoking violations, made necessary a new policy of strictness with
regard to safety violations, which policy had been conveyed to the
foremen in June and July. While it is true that smoking rules
had not been strictly enforced prior to May 21, the date of the
1 The Intermediate Report incorrectly stated that George Posey, who was discharged
for improper timbering , did not serve on the UMW picket line.
2 Three months prior to Birchfield 's discharge , 14 of the Respondent' s employees, in-
cluding Birchfield, had participated in picketing on behalf of the United Mine Workers.
As was found by the Trial Examiner , "It may well be that the Respondent considered,
the United Mine Workers a plague which could prevent the operation of its mine." On
several occasions before his discharge , Birchfield was told by the foreman to "watch his
step," and that the Respondent was looking for a reason to discharge UMW adherents.
An additional fact, which the Intermediate Report failed to mention, was that Vice
President Long had previously told Birchfield that the company would "pull out" before
paying UMW wages.
122 NLRB No. 77.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mine death, there is undisputed evidence that three other employees,
including two non-UMW adherents, had been discharged since that
date for other safety violations. There is no allegation that any of
the 13 other UMW pickets were discriminatorily discharged, or
were in any other manner discriminated against. In view of these
factors, and the entire record in the case, we are constrained to
hold, with the Trial Examiner, that Birchfield's discharge was for
cause, and not for his UMW activities. Accordingly, we shall dis-
miss the complaint.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by Hugh B. Birchfield on November 15, 1957, the General
Counsel of the National Labor Relations Board, by the Regional Director for the
Tenth Region (Atlanta, Georgia), issued a complaint and notice of hearing dated
March 26, 1958, against Laddie Coal & Mining Co., herein called the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section
2(6) and (7) of the National Labor Relations Act, as amended, herein called the
Act. Copies of the charge, the complaint, and notice of hearing were duly served
upon the Respondent and the Charging Party.
The charge, as filed, alleged that the Respondent had engaged in unfair labor
practices within the meaning of Section 8(a), (1), (2), and (3) of the Act. There-
after on March 24, 1958, the Regional Director for the Board's Tenth Region, the
Scott County Miners Union, the Charging Party and the Respondent herein entered
into a "Settlement Agreement" which in effect provided that: (a) the Respondent
withdraw and withhold recognition from the Scott County Miners Union, unless
and until it be certified by the Board;' (b) no effect be given to a certain contract
entered into between the Respondent and the Scott County Miners Union; (c) the
Respondent and the Scott County Miners Union jointly and severally reimburse the
Respondent's employees for initiation fees, dues, and assessments paid to the said
Union after May 25, 1957; and (d) the Board "be asked to revoke the certification
of the Union heretofore issued in Case No. 10-RC-3843."
The agreement further provided that the Regional Director be in no way precluded
from issuing a complaint on the 8(a)(3) violation charged.
The above agreement was approved by the Regional Director for the Tenth
Region.
On April 15, 1958, an "Order Revoking Certification of Representatives" was
issued in Case No. 10-RC-3843.
The instant proceeding is based on the right reserved to the Regional Director in
the agreement above mentioned.
The Respondent filed an answer in which it averred that Birchfield was discharged
for cause and not as a result of any unfair labor practice as alleged.
Pursuant to notice a hearing was held before Louis Plost, the duly designated Trial
Examiner, at Huntsville, Tennessee, on May 13 and 14, 1958. The General Counsel,
and the Respondent were represented by counsel, herein referred to in the names of
their principals, the Charging Party, pro se. The parties participated in the hearing
and were afforded full opportunity to be heard, to examine and cross-examine wit-
nesses , to introduce evidence bearing upon the issues , to argue orally , and to file
briefs and/or proposed findings of fact and conclusions of law with the Trial
Examiner.
At the close of the hearing the Trial Examiner granted an unopposed motion by
the General Counsel to conform all the pleadings to the proof with respect to
spellings, dates, and like variance not substantive.
No oral argument was presented. A date was set for the filing of briefs and/or
proposed findings and conclusions. No briefs have been received.
'The Scott County Miners Union had been certified May 15, 1957. The agreement
provided for voiding this certification.
LADDIE COAL & MINING CO. 555
Upon the entire record and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The parties are in agreement that the Respondent is, and at all times material
herein has been , a Tennessee corporation maintaining its principal office and place
of business at or near Robbins, Tennessee , and is engaged in the operation of a
coal mine.
The Respondent during the last calendar year, which period is representative of all
times material herein , sold and shipped coal valued at more than $ 100,000 directly
to customers located outside the State of Tennessee.
II. THE ORGANIZATION INVOLVED
Scott County Miners Union is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Alleged Discriminatory Discharge of Hugh B. Birchfield
The complaint alleged that because of his membership in, and activities on behalf
of, the United Mine Workers of America ( UMW) and in violation of Section 8 (a) (1)
and (3 ) of the Act the Respondent , on or about July 18, 1957 , discharged and
thereafter failed and refused to reinstate its employee Hugh B. Birchfield.
To lay a foundation for the allegation that Birchfield was discharged because of
his UMW membership and activities the General Counsel as background ques-
tioned Birchfield with respect to the time he began work for the Respondent in
1955. Birchfield testified:
Q. (By Mr. Hamilton .) Now, at that time [1955 ], were you a member or
engaging in any activity on behalf of the United Mine Workers?
A. No, sir. I was not.
Q. Did you thereafter-that is, after you started back to work for the com-
pany-engage in any activities for the United Mine Workers?
A. Yes, sir. I did.
Q. Approximately when was that?
A. Well, I signed a card for the United Mine Workers, I do not know, some
seven or eight months after that , I would say. I do not know exactly what
date was on it.
However, it seems that if Birchfield became a member of the UMW by reason of
"signing a card" he did not remain so but joined the Scott County Miners Union
in which he remained until sometime in May 1957, when according to his testimony
"I was kicked out."
On April 1, 1957, the Respondent shut down the Laddie Mine, the reason given
in a posted notice, being failure to sell coal then mined.
While the Respondent 's mine was shut down the UMW picketed various mines
in the area . Birchfield testified he served on the picket line during its entire existence.
The Respondent posted a notice that the mine would reopen on April 16, 1957. On
that day some of its employees crossed the picket line but about 13 or 14 including
Birchfield continued to serve as pickets for the UMW , however, the mine did not
resume work ; the employees petitioned for a Board election to determine a bar-
gaining representative ; the election was held on May 7, 1957, the Scott County
Miners Union being designated and thereafter certified2 May 17, 1957. On May 20,
the Respondent 's mine reopened . On the same day Birchfield returned to work.
Birchfield testified that "a week " after the mine reopened , Foreman Dewey Wright
entered into a conversation with him at his place of work, during which
Mr. Wright told me to watch my step; said that he had orders to get rid of me
at the first chance he got , and said for me to watch my step and to not let
nobody catch me smoking and to watch my step.
He further testified:
Q. Was there anything said about why, or did Mr.-
A. Said Mr. Long had told him that the first chance he got to fire me and
the other fellows that was on the picket line, and said that-Mr . Wright told him
2 As found herein this certification was revoked after a settlement agreement , April 15,
1958.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he said he could not fire a man for no reason at all, said I done my work
and he just could not fire me; he could fire any of the rest of the men as soon
as he would fire me, and said Mr. Long told him that he could always catch
enough stuff on a man to. fire him, said he could just catch anything on him
and fire him , said just any little thing , just wanted to get rid of him.
According to Birchfield "three or four nights, probably, before I was fired," Fore-
man Dewey Wright told him that "they were putting the pressure on him " to discharge
Birchfield and all other UMW adherents ; he further testified:
Q. Now, between this conversation that you told us about, about a week
after you went back to work and the conversation that you just described
which you say was two or three days before you were discharged , approximately
how many times did you talk with Mr. Wright along this line?
A. Well, just different times, It was nearly every night that something or
other was said about it.
However, immediately following this testimony the General Counsel put the follow-
ing questions to Birchfield , receiving the following answers:
Q. Did you have that conversation directly with Mr. Wright?
A. Mr. Frank Chambers was the man that told me that.
Q. Was Mr. Chambers the foreman?
A. He was under Mr. Wright . I understand he was under Mr. Wright. He
had one section and Dewey Wright had another one, but Mr. Wright was the
general foreman on that shift.
Neither Dewey Wright nor Frank Chambers was called to testify, however, A. E.
Long, the Respondent 's vice president and general manager of the mine testified:
Q. (By Mr. Lindsay Young. ) Mr. Long, did you ever instruct Dewey
Wright or any other supervisor of the Laddie Coal & Mining Company to get
rid of Hugh B . Birchfield for any reason or any other similar statement such as,
"Get rid of this man, no matter what?"
A. No. I told all of the foremen individually and collectively to discharge
anyone for violation of any safety rules and for violation of any Federal or
State law.
On cross-examination Birchfield testified:
Q. (By Mr. Robert Young. ) You said you testified a while ago that you
were told to watch your step and you took that not only to avoid evil but the
appearance of evil , that is, not carry cigarettes and cigarette lighters.
A. No, sir . I was never told not to carry them.
Q. What did you understand the meaning , watch your step about this?
A. Not let none of the higher officials catch me smoking in there. [Empha-
sis supplied.]
Birchfield testified that on July 18, 1957 ,3 before he went into work he had been
standing at the "light house" smoking ; that he started into work and that when he
was 15 or 16 feet inside the "drift mouth"
Mr. Long hollered at me and asked me was I going inside the mines and I
told him , "Yes, sir," I was. He said , "Get out. Get out . You are fired." I
said, "On what grounds?" He said, "You have got smoking facilities on you."
I said, "Can you prove it?" He said , "Get out. Get out. You are fired."
that he then went to the "washhouse ," and was preparing to change his clothing and
that within 10 minutes after Long had discharged him, Long appeared at the wash-
house and gave him a check in full , although a half month 's pay was withheld, pay-
day being the 15th and 30th, and the office was between 600 and 700 yards from
the point at which he had been discharged.
Manager Long testified that he saw Birchfield smoking before work, saw him
go into the "drift mouth " after putting his smoking materials into his pockets. He
testified further:
So I went on over to the drift mouth with Birchfield and, as he said, it was
about 14 or 15 feet , I guess , inside the drift mouth ; I asked him if he was
going on in the mine. He said yes . I said, "You mean that you are going in the
mine with those smoking articles in your pockets ?" and he said , "Sure ." I said,
"Well, all right , then , you are through."
$ The mine had reopened and Birchfield had returned to work May 20.
LADDIE COAL & MINING CO. 557
Long further testified that the "scale house," about 30 or 40 feet from the "drift
mouth" is connected by telephone with the office ; that he stepped into the "scale
house" telephoned the office and instructed the clerk to prepare Birchfield 's check
in full; that the July 15 payroll was already prepared but had not yet been sent to
the Respondent's main office making it a simple matter to figure Birchfield's account
in full, as he was an hourly paid worker; according to Long:
So I followed after Mr. Birchfield very closely, went into the office, picked up
the check from the clerk, took it over to the bath house and Mr. Birchfield had
started to disrobe, and I told him, I said, "Here is your check. We are paying
you up to date."
Manager Long testified that: shortly after he took charge of the Respondent's
mine, when it was first opened , the chief mine inspector of Tennessee informed
him that the mine would be classified a "gassy" mine , as it worked the same seam
of coal in which gas had been found and an explosion had occurred; that the presence
of gas in a mine is very dangerous ; on November 17, 1955, he found burned matches
in one of the return air courses of the mine, where, had there been gas at any point
in the mine it would have been carried by the air current and the lighting of a flame
would have caused an explosion; because of the fact that since 1955 "we were con-
stantly plagued by organizers for the United Mine Workers Union"4 and the fact
that the local people were of independent character , he being a stranger feared a
shutdown from the very beginning if he was not "tolerant" in the enforcement of
stringent safety laws, until such time as he had won the confidence of the employees;
on May 21, the day after the mine reopened, following the Board-conducted election
a worker was killed in the mine because safety rules had been flagrantly violated and
so, at that time, I decided that we just simply had to get all of our miners and
foreman and everyone to obey reasonable safety rules, and the laws . . . that they
must see that the timbering was kept up according to our standards, and that
smoking in the mine and the carrying of smoking articles must be stopped.
According to Long in June and early July 1957, after having again been told that
smoking was prevalent in the mine , "I again told all the foreman I wanted them to
discharge anyone, I did not care who it was, for the violation of any safety rules
State or Federal law-"; that thereafter as the foreman claimed that although they
could smell smoke they could not catch anyone he "decided that I had to make an
example of someone," if such a violator would be caught.
The rule against smoking in the mine had been published to all employees from
its first opening by means of a sign posted at the entrance which read:
DANGER
NO SMOKING
MATCHES OR
OPEN LIGHTS
On November 17, 1955, the day Long discovered the burned matches in the
return air course he wrote the Union that the mine was declared "gassy" and
asked its cooperation in preventing smoking or bringing smoking materials into the
mine. The letter read inter alia:
Please ask all of the Scott County Miners Union to observe the law . If they
do not , we shall have to initiate periodic searches but it is much better if we all
observe the "Honor System."
A copy of this letter was posted on the bulletin board at the mine from November
17, 1955, until October 1957.
Birchfield admitted he had cigarettes on his person at the time he was discharged;
he further testified:
Q. Did you, during the time that you were employed there, ever smoke in
the mine?
A. Yes, sir. I did.
Q. Did you ever do so in the presence of any supervisor?
A. No, sir. I never.
4 The record contains uncontroverted testimony that at the time the mine was opened
the Respondent informed prospective employees that the mine was a marginal operation
and that the United Mine Workers' scale of wages could not and would not be paid.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He testified he knew of the sign prohibiting smoking or bringing matches into the
mine, testified he knew the mine was "gassy" but that he nevertheless smoked in it; he
further testified:
Q. Now, during the time that you were working there, did you see cigarettes
or matches in the mine?
A. Yes, sir. They are all over the place in the mines. You can see them
anywhere in the mines; cigarette butts, match stems, and whatnot in the mines.
He further testified:
Q. (By Mr. Hamilton.) Mr. Birchfield, you testified on cross-examination
that you knew that Mr. Wright was telling you to get rid of this evidence so
that-this evidence of smoking-so that the Company's higher management
would not see it. Just what did Mr. Wright have to say?
A. Well, Mr. Wright told me to watch my step and during the time that I
threw these cigarette butts and smoking tobacco on the belt, he said if they had
seen that, for instance, if Mr. Long crawled through there, come through that
place there, and all that stuff piled up there, cigarette butts and everything, Mr.
Long might have got it in his head that I had not been doing a thing on that
shift, had not been doing my work, just sitting there smoking had a sack of
Country Gentleman out there-looked like a sack of-out there smoking, and
that is what he was pertaining to.
The General Counsel apparently in an effort to show disparity of treatment between
adherents of the UMW and other employees called various witnesses as to smoking
and discharges. Without burdening this Report with detail, it is the Trial Examiner's
opinion that this testimony served more to buttress the wall of the Respondent's
defense rather than breach it, thus those called testified they had smoked in the mine,
had seen and smelled smoke, but in the main all testified no smoking took place in
the presence of supervisors. All the witnesses knew of the rules against smoking or
bringing matches into the mine, thus Lawrence Smith, called by the General Counsel,
testified :
TRIAL ExAMINER: Did you ever smoke in the mine after this conversation
with Mr. Long in which he told you to get rid of the cigarettes before you went
in the mine?
The WITNESS: No, I got me some chewing tobacco and I started chewing.
I was pretty particular because I figured I would get fired if I got caught with
them again.
George Posey, also called by the General Counsel, testified that he was discharged
because he had improperly placed timbering. Posey did not serve on the picket line.
John C. Bradshaw, District Mine Inspector for the State of Tennessee, testified
that the Respondent's mine is designated a "gaseous mine."
The statutes of Tennessee provide (Mines & Mining Title 58) :
The carrying of matches or other flame making devices and smoking in a gassy
mine shall be prohibited.
The Federal Coal Mine Safety Act (66 Stat. 692) reads:
In a gassy mine, smoking shall not be permitted underground, nor shall any
person be permitted to carry smoking materials, matches, or lighters under-
ground.
Manager Long testified:
Q. Now, has any other person, other than Hugh B. Birchfield, been dis-
charged for carrying smoking material in the mines?
A. No. The very next night after I discharged Mr. Birchfield I never saw
so many packs of chewing tobacco around the-with the employees.
Q. Do you still see the chewing tobacco?
A. Yes. It had a good effect.
Conclusion
The Respondent's answer averred:
the Respondent says that it discharged and has refused to reinstate said Birchfield
because he violated the safety rules and regulations of the respondent company
and statutory law of the State of Tennessee in that he carried a cigarette
DR. ihALSBURY'S LABORATORIES, INC. 559
lighter, a flame making device , into the mine of Respondent , which has been
designated by the United States Bureau of Mines and the Tennessee Department
of Mines as a gassy mine, which act is prohibited by ... the Tennessee Code.
It may well be that the Respondent considered the United Mine Workers a plague
which could prevent the operation of its mine, however , considering Birchfield's
testimony that "13 or 14" of the Respondent 's employees were in the United Mine
Workers' picket line and there is no contention that any of these , except Birchfield,
were discharged therefore , and, moreover since there is evidence that employees who
had no connection with the United Mine Workers were discharged because they
violated safety regulations , it cannot be said that the Respondent sought out adherents
of the United Mine Workers for discriminatory discharge.
Birchfield's discharge occurred 2 months after the picket line incident. The record
discloses that the Respondent had knowledge of Birchfield' s "membership" in the
United Mine Workers acquired sometime after he was employed in 1955. It is
clear that Birchfield knew (as must all the employees) that the Respondent's mine
was classified as "gassy"; that smoking and carrying fire-making devices in the mine
was both illegal and prohibited by the Respondent's rules; that he was given friendly
warning not to smoke on pain of discharge and despite all this he continued to
smoke and carry fire-making devices in the mine.
Final Conclusions
The Trial Examiner is convinced and finds on the entire record that the General
Counsel has not sustained his burden of proof and will therefore recommend that
the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The operations of the Respondent, Laddie Coal & Mining Co. occur in com-
merce, within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(1) and (3) of the Act as alleged in the complaint.
[Recommendations omitted from publication.]
Dr. Salsbury's Laboratories, Inc. and United Packinghouse
Workers of America , AFL-CIO, Petitioner. Case No. 18-RC-
3640. December 18, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Kenneth W. Haan,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Fanning].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sec-
tion 9(c) (1) and Section 2(6) and (7) of the Act.
122 NLRB No. 67.